Opinion
CIVIL ACTION No. 02-3241-CM
January 6, 2004
MEMORANDUM AND ORDER
Plaintiff, a federal inmate appearing pro se, brought this action against defendants M.E. Ray, Walter Wood, Raymond Darrow, "John Doe I" and the United States of America, alleging that while incarcerated at the United States Penitentiary, Leavenworth, Kansas, (USP Leavenworth), defendants placed him in administrative detention because of his Muslim faith in violation of his First Amendment right to religious freedom. Additionally, plaintiff alleged that defendants subjected him to excessive force, also due to his Muslim faith, when he was placed in ambulatory restraints on March 20, 2001, in violation of both his First and Eighth Amendment rights. Plaintiff further alleged these acts have violated his statutory rights under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb-1(a).
On November 12, 2003, this court granted (Doc. 37) defendants' Motion to Dismiss or for Summary Judgment (Doc. 24). Plaintiff has filed a Notice of Appeal to the United States Court of Appeals for the Tenth Circuit. This matter is before the court on plaintiff's Motion for Assignment of Legal Counsel and Granting Leave to Appeal In Forma Pauperis (Doc. 43).
I. Leave to Appeal In Forma Pauperis
On March 17, 2003, the court granted plaintiff's motion for leave to proceed in forma pauperis. Because plaintiff already was permitted to proceed in forma pauperis in the district court action, the court grants plaintiff's motion to proceed in forma pauperis on appeal. Fed.R.App.P. 24(a)(3).
II. Appointment of Counsel
Plaintiff did not request appointment of counsel during the course of this litigation in district court. Plaintiff now requests the court to appoint counsel for purposes of appeal.
The right to counsel in a civil case is not a constitutional right under the Sixth Amendment. MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988). This applies to prisoners bringing constitutional actions. Bishop v. Romer, 1999 WL 46688, at *3 (10th Cir. Feb. 3, 1999). However, pursuant to 28 U.S.C. § 1915, the court may request an attorney to represent any person unable to afford counsel. In considering whether to appoint counsel in a civil action, the court must consider a variety of factors, including the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of legal issues raised. Long v. Schillinger, 927 F.2d 525, 527 (10th Cir. 1991).
The court first turns to the merits of plaintiff's claims. Plaintiff in this case alleged constitutional tort claims based upon violations of the First and Eighth Amendments of the United States Constitution and RFRA. In its November 12, 2003 Memorandum and Order, the court dismissed plaintiff's claims. With respect to plaintiff's Eighth Amendment claims, the court found no evidence in the record to suggest that plaintiff suffered any injury at all and that, in any event, the placement of plaintiff (and other inmates) in amubulatory restraints to quell a prison disturbance does not amount to cruel and unusual punishment. Regarding plaintiff's First Amendment claims, the court determined that plaintiff had failed to articulate any interference with the practice of his Muslim beliefs and that plaintiff lacked evidence of religious retaliation. The court also concluded that there existed nothing in the record tending to show that defendants' actions burdened the free exercise of his religion in violation of RFRA. The court concludes at this time that plaintiff's claims lack merit.
The court next turns to the nature and complexity of the factual and legal issues raised. The crux of plaintiff's claims is that, on March 20, 2001, he was placed in ambulatory restraints for approximately eighteen to twenty-four hours. Plaintiff's claims thus arise out of a single event, the facts of which are not particularly complicated and the legal issues of which are relatively straightforward.
Finally, the court considers plaintiff's ability to present his claims. At the district court level, plaintiff has been a relatively able litigant. Plaintiff has filed and responded to motions, indicating that he is literate and indeed has some legal knowledge. Moreover, while not always a model of clarity, the substance of plaintiff's pleadings indicates he is capable of presenting his own case. The court concludes that appointment of counsel in this civil action is not warranted. Plaintiff's motion for assignment of legal counsel is denied.
IT IS THEREFORE ORDERED that plaintiff's Motion for Assignment of Legal Counsel and Granting Leave to Appeal In Forma Pauperis (Doc. 43) is granted in part and denied in part.