Opinion
23-3182-JWL
09-26-2023
BRIAN MICHAEL WATERMAN, Plaintiff, v. (FNU) HARRED, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas. He was granted leave to proceed in forma pauperis.
This matter is before the Court on Plaintiff's Motion to Amend Complaint (Doc. 9) and Motion to Appoint Counsel (Doc. 8). Plaintiff states that he seeks to amend the complaint to correct the defendants' names and titles and to add factual allegations.
Rule 15(a)(1) provides that a party may amend its pleading once as a matter of course within 21 days after serving the pleading. Fed.R.Civ.P. 15(a)(1)(A). However, to do so, Plaintiff must file a complete amended complaint on the court-approved forms. An amended complaint is not simply an addendum to the original complaint and instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no longer before the Court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to be retained from the original complaint.
To the extent Plaintiff seeks to amend his complaint by motion rather than by filing a complete amended complaint, the motion is denied.
In his Motion to Appoint Counsel, Plaintiff argues that he needs a lawyer because he does not currently have access to a law library tablet and must submit legal pleadings to the Unit Team for filing. He argues that he will not be able to intelligently respond to the defendants' arguments.
The Court has considered Plaintiff's motion. As Plaintiff acknowledges, 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 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 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 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 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a 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.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979). The Court concludes in this case 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. The Court denies the motion without prejudice to refiling the motion at a later stage of the proceedings.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff's Motion to Amend Complaint (Doc. 9) is denied to the extent Plaintiff seeks to amend his complaint by motion rather than by filing a complete amended complaint on court-approved forms.
IT IS FURTHER ORDERED that Plaintiff's Motion to Appoint Counsel (Doc. 8) is denied.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.