McElwee v. Truelove et al

Filing 46

OPINION AND ORDER by District Judge James H. Payne :Denying 45 second Motion for Appointment of Counsel. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RAY ARTHUR McELWEE,
Plaintiff,
v.
MS. TRUELOVE, et al.,
Defendants.

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No. CIV 17-240-JHP-SPS

OPINION AND ORDER
DENYING SECOND MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has filed a second motion requesting the appointment of counsel (Dkt. 45). He
alleges his imprisonment and mental illness have limited his ability to litigate, and he needs
assistance to protect his due process rights. Id. at 1.

There is no constitutional right to appointment of counsel in a civil case. Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir.
1995). The decision whether to appoint counsel in a civil matter lies within 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
the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006)
(quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not
enough “that having counsel appointed would [assist the prisoner] in presenting his strongest
possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (quoting
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
The Court again has carefully reviewed the merits of Plaintiff’s claims, the nature of

factual issues raised in his allegations, and his ability to investigate crucial facts. McCarthy
v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985) (citing Maclin v. Freake, 650 F.2d 885, 88788 (7th Cir. 1981)). The Court concludes the issues are not complex, and Plaintiff appears
capable of adequately presenting facts and arguments.
ACCORDINGLY, Plaintiff’s second motion for appointment of counsel (Dkt. 45)
is DENIED.
IT IS SO ORDERED this ___ day of August 2019.

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