Opinion
CASE NO. 21-3031-SAC
04-07-2021
STEVEN MEREDITH, Plaintiff, v. DAN VALLIER, et al., Defendants.
MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at the Ellsworth Correctional Facility in Ellsworth, Kansas ("ECF").
Plaintiff alleges that on October 13, 2020, he received from the Kansas Department of Corrections ("KDOC") a Notification of Publication Seizure/Censorship of religious material, regarding The Satanic Bible. Plaintiff also alleges that he did not receive approval to purchase a cleansing feather and inverted pentagram pendant. Plaintiff alleges violations of his right to free exercise of religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1. Plaintiff seeks injunctive relief.
The Court finds that the proper processing of Plaintiff's claims cannot be achieved without additional information from appropriate officials of ECF. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). Accordingly, the Court orders the appropriate officials of ECF to prepare and file a Martinez Report. Once the report has been received, the Court can properly screen Plaintiff's claims under 28 U.S.C. § 1915A.
Plaintiff has also filed a Motion for Appointment of Counsel (Doc. 6). Plaintiff sets forth the attorneys he has contacted attempting to seek representation. The Court has considered Plaintiff's motion for appointment of counsel. 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 if Plaintiff's Complaint survives screening.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff's Motion for Appointment of Counsel (Doc. 6) is denied without prejudice.
IT IS FURTHER ORDERED that:
(1) The Clerk of Court shall serve Defendants under the e-service pilot program in effect with the Kansas Department of Corrections ("KDOC").
(2) Upon the electronic filing of the Waiver of Service Executed pursuant to the e-service program, KDOC shall have sixty (60) days to prepare the Martinez Report. Upon the filing of that report, the AG/Defendant shall have an additional sixty (60) days to answer or otherwise respond to the Complaint.
(3) Officials responsible for the operation of ECF are directed to undertake a review of the subject matter of the Complaint:
a. To ascertain the facts and circumstances;
b. To consider whether any action can and should be taken by the institution to resolve the subject matter of the Complaint; and
c. To determine whether other like complaints, whether pending in this Court or elsewhere, are related to this Complaint and should be considered together.
(4) Upon completion of the review, a written report shall be compiled which shall be filed with the Court and served on Plaintiff. The KDOC must seek leave of the Court if it wishes to file certain exhibits or portions of the report under seal or without service on Plaintiff. Statements of all witnesses shall be in affidavit form. Copies of pertinent rules, regulations, official documents, and, wherever appropriate, the reports of medical or psychiatric examinations shall be included in the written report. Any recordings related to Plaintiff's claims shall also be included.
(5) Authorization is granted to the officials of ECF to interview all witnesses having knowledge of the facts, including Plaintiff.
(6) No answer or motion addressed to the Complaint shall be filed until the Martinez Report required herein has been prepared.
(7) Discovery by Plaintiff shall not commence until Plaintiff has received and reviewed Defendant's answer or response to the Complaint and the report ordered herein. This action is exempted from the requirements imposed under Fed. R. Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the Clerk of Court shall enter KDOC as an interested party on the docket for the limited purpose of preparing the Martinez Report ordered herein. Upon the filing of that report, KDOC may move for termination from this action.
Copies of this order shall be transmitted to Plaintiff, to Defendants, and to the Attorney General for the State of Kansas.
IT IS SO ORDERED.
Dated April 7, 2021, in Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge