Smithback v. Smithback et al
ORDER denying 10 Motion for Reconsideration of appointment of counsel; granting 2 Motion for Leave to Proceed in forma pauperis, without assessing an initial fee under 28 U.S.C. § 1915(b)(1). Plaintiff remains obligated to pay the entire & #036;400.00 filing fee in installments as funds become available. The Clerk shall issue summons to the US Marshal or Deputy Marshal, who are appointed pursuant to Fed.R.Civ.P. 4(c)(3). The clerk is to transmit a copy of this order to Plaintiff, to the finance office at the institution where Plaintiff is currently confined, and to the Court's finance office. See order for additional details. Signed by Magistrate Judge Gwynne E. Birzer on 10/7/19. (adc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT NORMAN SMITHBACK,
WILLIAM ANDREW SMITHBACK, et al., )
Case No. 19-1103-JWB-GEB
This matter is before the Court on Plaintiff Robert Norman Smithback’s Motion to
Proceed Without Prepayment of Fees (ECF No. 2, sealed) which the Court previously took
under advisement, and his Motion to Reconsider his Motion for Appointment of Counsel
(ECF No. 10). For the reasons set forth below, Plaintiff’s Motion to Proceed in forma
pauperis (ECF No. 2, sealed) is GRANTED, and Plaintiff’s Motion to Reconsider his
Motion for Appointment of Counsel (ECF No. 10) is DENIED.
In his original Complaint, Plaintiff brings several state law claims against
Defendants William Smithback and Terry Justice due to the transfer of ownership of a
house in Wellington, Kansas. (ECF No. 1.) Both Defendants are citizens of Kansas.
Plaintiff is incarcerated in Texas but did not allege his citizenship in his initial complaint.
Upon review of Plaintiff’s motion to proceed without prepayment of fees, and concurrent
review of his Complaint, the undersigned U.S. Magistrate Judge recommended dismissal
on the basis that the original Complaint does not establish that the parties are diverse, and
Plaintiff seeks less than $75,000. (Report and Recommendation, ECF No. 7.)
undersigned also took Plaintiff’s motion for leave to proceed in forma pauperis under
advisement and denied Plaintiff’s motion for appointment of counsel in light of the
recommendation of dismissal. (ECF No. 6.)
Although Plaintiff’s initial complaint was defective, Plaintiff sought leave to amend
his Complaint as a response to the Recommendation. (Motion, ECF No. 9.) Given the
request for amendment, Judge Broomes declined to adopt the recommendation of
dismissal, and granted Plaintiff’s request to amend his pleading. (Mem. and Order, ECF
No. 13.) Plaintiff’s Amended Complaint clarifies he was a citizen of Texas prior to his
incarceration, and amends his demand for relief to include monetary damages in excess of
$75,000. (Am. Compl., ECF No. 14.) On the face of his Amended Complaint, diversity
jurisdiction is satisfied. Therefore, the undersigned now reviews Plaintiff’s pending
Motion for Leave to Proceed in forma pauperis (ECF No. 2, sealed)
In its order taking the motion for leave to proceed without prepayment of fees under
advisement, the Court required Plaintiff to submit an initial partial filing fee. (ECF No. 6.)
Instead, Plaintiff timely filed a supplement to his motion, which this Court also construes
as an objection to the order requiring an initial partial filing fee. (ECF No. 11, sealed.)
Plaintiff’s supplement, along with the attached statement of his inmate account,
demonstrates his inmate account has minimal funds and he has no current source of income.
This motion is governed by 28 U.S.C. § 1915(b). In Plaintiff’s pleadings, he
identifies himself as being incarcerated in Texas.1 Because Plaintiff is a prisoner, he must
pay the full filing fee in installment payments taken from his prison trust account when he
“brings a civil action or files an appeal in forma pauperis[.]”2 Pursuant to § 1915(b)(1),
this Court must assess, and collect when funds exist, an initial partial filing fee calculated
upon the greater of (1) the average monthly deposit in his account or (2) the average
monthly balance in the account for the six-month period preceding the filing of the
complaint. Thereafter, Plaintiff must make monthly payments of twenty percent of the
preceding month’s income in his institutional account.3 However, a prisoner shall not be
prohibited from bringing a civil action or appeal because he has no means to pay the initial
partial filing fee.4
Upon review of the information presented in Plaintiff’s application (ECF No. 2,
sealed) and his Supplemental Motion (with updated trust account statement) (ECF No. 11,
sealed), it appears Plaintiff lacks funds to pay an initial partial filing fee. Therefore, the
Court will grant leave to proceed in forma pauperis without assessing an initial fee under
28 U.S.C. § 1915(b)(1). Plaintiff remains obligated to pay the entire $400.00 filing fee in
installments as funds become available.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed in forma
pauperis (ECF No. 2, sealed) is GRANTED. Notwithstanding this grant of leave, Plaintiff
ECF No. 1, ¶ 7.
28 U.S.C. § 1915(b)(1).
is required to pay the full amount of the filing fee and is hereby assessed $400.00. Plaintiff
is required to make monthly payments of 20 percent of the preceding month’s income
credited to the prisoner’s account. The agency having custody of Plaintiff shall forward
payments from the prisoner’s account to the clerk of the court each time the amount in the
account exceeds $10.00 until the filing fees are paid.5
The clerk is to transmit a copy of this order to Plaintiff, to the finance office at the
institution where Plaintiff is currently confined, and to the Court’s finance office.
Additionally, because Plaintiff proceeds in forma pauperis, the clerk of the court shall take
the appropriate steps to serve Defendants with the summons and Amended Complaint
(ECF No. 14) as provided under 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3).
Motion for Reconsideration of Appointment of Counsel (ECF No. 10)
In addition to taking the fee motion under advisement, on July 15, 2019, the Court
denied Plaintiff’s motion to appoint counsel to represent him in this case. (ECF No. 6.)
This matter is now before the Court on Plaintiff’s Motion to Reconsider his Motion for
Appointment of Counsel. (ECF No. 10). For the reasons set forth below, Plaintiff’s motion
shall be DENIED.
The grounds for requesting reconsideration of a non-dispositive ruling are relatively
narrow. D. Kan. Rule 7.3 provides that such a motion 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.
“Such motions are not appropriate if the movant only wants the court to revisit issues
already addressed or to hear new arguments or supporting facts that could have been
presented originally.”6 The movant bears the burden to demonstrate an adequate reason to
reconsider the Court’s prior order.7 The standards for considering whether to appoint
counsel were discussed in the earlier Order (ECF No. 6) and will not be repeated here.
After careful consideration, the Court rejects Plaintiff’s motion to reconsider and
appoint counsel. Regarding the D. Kan. Rule 7.3 grounds, Plaintiff does not identify either
a change in controlling law or any new evidence. Plaintiff apparently relies on the third
ground: a need to correct clear error or prevent manifest injustice. But the Court denied
Plaintiff’s original motion because of his lack of meaningful effort to contact counsel and
because he appeared capable, at least during the preliminary stages of the case, of asserting
his claims. These reasons are neither erroneous nor unjust. Although Plaintiff’s second
motion includes additional details of his lack of access to Kansas legal resources, this
allegation was included in his original motion, and such supporting facts could also have
Even if Plaintiff had met his burden to demonstrate a sufficient reason to reconsider
its earlier Order, this Court would still deny his request at this time based upon the factors
Farris v. City of Garden City, Kan., No. 15-1078-MLB, 2015 WL 1978442, at *2 (D. Kan. May
1, 2015) (citing Keys Youth Services v. City of Olathe, Kansas, 67 F. Supp.2d 1228, 1229 (D. Kan.
1999)) (emphasis added).
Id. (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 193 F.R.D. 696, 697 (D. Kan.
for determining appointment of counsel. The Court is satisfied Plaintiff is unable to afford
an attorney, as evidenced by his motions for leave to proceed in forma pauperis (ECF Nos.
2, 11, sealed) and the above Order permitting him to proceed in forma pauperis.
Additionally, the Court does not construe Plaintiff’s efforts to engage his own counsel, or
lack of demonstration thereof, against his request for appointment, bearing in mind his
incarceration and inability to pay. However, after careful consideration of the remaining
factors, the Court declines to appoint counsel for the following reasons.
First, Plaintiff’s case does not appear unusually complex.8 Moreover, Plaintiff has
demonstrated no reason why he is unable to adequately present the case on his own.
Plaintiff has shown no special circumstances, such as mental or physical impairment,
which would indicate he is unable to present his claims.9 His written pleadings and motions
appear well-formulated, organized, and coherent. Although he complains he has limited
access to legal materials, Plaintiff prepared and filed multiple court documents to date, all
of which were comprehensible. Plaintiff has given this Court no indication of difficulty
either communicating with the Court or filing desired documents on his own behalf. And,
although the Court cannot “assume the role of advocate” for a pro se litigant, it does provide
him some latitude in future filings.10
See Smith v. Phamm, No. 03-3451-SAC, 2008 WL 631263, at *3 (D. Kan. Mar. 5, 2008) (citing
multiple cases, noting generally, cases involving the treatment and alleged civil rights violations
of incarcerated plaintiffs are “not particularly complex.”) (internal citations omitted).
Phamm, 2008 WL 631263, at *3.
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (noting the Court does “make some allowances for
the pro se plaintiff's failure to cite proper legal authority, his confusion of various legal theories,
his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”)
There is no constitutional right to counsel in a civil action,11 and the Court has an
obligation not to make indiscriminate appointments on every occasion that a party seeks
court-ordered counsel,12 particularly in light of the expanding federal court dockets,
increased filings by pro se parties, and decreasing number of attorneys willing to accept
appointments.13 The party seeking counsel under § 1915(e)(1) has the burden “to convince
the court” that asserted claims have sufficient merit to warrant the appointment of
counsel.14 “That counsel could assist plaintiff in presenting ‘his strongest possible case’ is
not a proper basis for granting such a motion.”15
After thorough review of the docket, the Court cannot predict at this time the
potential merit of Plaintiff’s claims. But the Court recognizes “its perception of the merits
and other factors relevant to the issue of appointment of counsel may vary”16 as the case
progresses. Although “a court may well appoint counsel at the outset of a case, it might
also decide to postpone the decision—for example, until after resolution of dispositive
motions—in order to give itself both more time and more information to evaluate the
See Sandle v. Principi, 201 F. App'x 579, 582 (10th Cir. 2006) (citing Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992) (Title VII case); Durre v. Dempsey, 869 F.2d
543, 547 (10th Cir. 1989) (civil case)).
Wheeler v. Wichita Police Dept., No. 97-1076-FGT, 1997 WL 109694, at *2 (D. Kan. Feb. 27,
See Sause v. Louisburg Police Dept., No. 15-9633-JAR-TJJ, ECF No. 16 (D. Kan. Jan. 6, 2016).
Jones v. Maritz Research Co., No. 14-2467-SAC, 2014 WL 6632929, at *1 (D. Kan. Nov. 21,
2014) (citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).
Phamm, 2008 WL 631263, at *3 (citing Brown v. Gray, No. 06–3003–JTM, 2007 U.S. Dist.
LEXIS 69925, at * 6–7 (D. Kan. 2007)); see also Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir.
2006) (“It is not enough that having counsel appointed would have assisted [him] in presenting his
strongest possible case, as the same could be said in any case.”)
Jones, 2014 WL 6632929, at *3.
plaintiff’s capabilities and the merits of the case.”17 Postponing a decision to appoint
counsel allows the Court to gain more information about both the merits of the claims and
Plaintiff’s continuing ability to present his case.18
Therefore, Plaintiff’s motion to
reconsider his motion for appointment of counsel shall be DENIED without prejudice to
the filing of a similar motion at a later stage of the proceedings.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider his Motion
for Appointment of Counsel (ECF No. 10) is DENIED without prejudice.
IT IS SO ORDERED.
Dated this 7th day of October, 2019 at Wichita, Kansas.
/s Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
Zillner v. Brennan, No. 15-9904-DDC-GLR, 2016 WL 81229, at *2-4 (D. Kan. Jan. 7, 2016)
(citing Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998) (internal citations omitted)).
Jones, 2014 WL 6632929, at *3 (citing Ficken, 146 F.3d at 981).
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