Wagner (ID 2000144015) v. Kansas Department of Corrections et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TYRON ELON WAGNER,
Plaintiff,
v.
ANNA BRIGHT, ET AL.,
Defendants.
Case No. 25-cv-3247-JWB-JBW
MEMORANDUM AND ORDER
Tyron Elon Wagner, a prisoner incarcerated at the Lansing Correctional Facility, filed this
pro se civil action alleging cruel and unusual punishment and use of excessive force. This matter
is before the Court on Plaintiff’s motion requesting the appointment of counsel (Dkt. 34).
Plaintiff’s prior motion for appointment of counsel was denied without prejudice to refiling if
Plaintiff’s claims survived screening.1 At that time, the Court concluded it was not clear that
Plaintiff had asserted a colorable claim against a named defendant, the issues were not clarified
and may not be complex, and Plaintiff appeared capable of adequately presenting facts and
arguments. Plaintiff’s present motion was filed after some of his claims passed screening.2
Although a defendant in a criminal action has a constitutional right to be represented by
counsel, it is well settled that a party in a civil action has no constitutional right to appointed
counsel.3 Under the in forma pauperis statute, the court “may request an attorney to represent” a
1 See January 1, 2026 Mem. & Order (Dkt. 14) at 16–18.
2 See July 21, 2026 Mem. & Order (Dkt. 30).
3 See Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989) (“There is no constitutional right to
appointed counsel in a civil case.”).
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party unable to afford counsel.4 Section 1915(e)(1) grants broad discretion for courts to request
counsel to represent an indigent party.5 In evaluating a prisoner’s request for appointed counsel,
the court should consider “the merits of the 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.”6
“The burden is on the applicant to convince the court that there is sufficient merit to his claim to
warrant the appointment of counsel.”7
Section 1915(e)(1) merely permits the court to “request” an attorney to represent an
indigent party in a civil case and does not authorize the court to require an unwilling attorney to
take the case.8 More significantly, Congress has not provided any mechanism or funding to
compensate counsel appointed in civil cases.9 So the court only may seek an attorney willing to be
appointed and provide his or her legal services pro bono (without payment). For these reasons, the
appointment of counsel in a civil case is rare.10
Plaintiff renews his request for the Court to appoint him counsel now that some of his
4 28 U.S.C. § 1915(e)(1).
5 Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App'x 744, 749 (10th Cir. 2009).
6 Steffey v. Orman, 461 F.3d 1218, 1224 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).
7 Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (quoting McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
8 See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 301–08 (1989).
9 See Castner v. Colo. Springs Cablevision, 979 F2d 1417, 1420 (10th Cir. 1992) (“Congress has
not provided any mechanism for compensating [] appointed counsel. Thoughtful and prudent use of the
appointment power is necessary so that willing counsel may be located without the need to make coercive
appointments. The indiscriminate appointment of volunteer counsel to undeserving claims will waste a
precious resource and may discourage attorneys from donating their time.”).
10 Wishneski v. Andrade, 572 F. App’x 563, 570 (10th Cir. 2014) (“Appointment of counsel in civil
cases is the rare exception, not the rule.”).
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claims have passed the screening process. He states that he has attempted to contact one law firm,
the U.S. Department of Justice, and the Kansas Human Rights Organization seeking representation
but has either not heard back or been declined representation. He further states the appointment of
counsel is well founded due to the complexity of the case and credibility issues that exist. He also
states that he is an indigent prisoner with no legal training and that he is confined to segregation
with very limited access to legal material.
Plaintiff, proceeding pro se, has litigated this case for nearly a year. During that time, he
has demonstrated his ability to gather facts and present his claims and arguments in his pleadings
and other filings. Plaintiff’s pleadings and filings to date adequately present the factual and legal
bases for his claims and demonstrate that he understands the basics of his claims. Through his own
efforts to date without counsel, some of Plaintiff’s claims have passed the Court’s screening. In
addition to Plaintiff’s demonstrated ability, the legal or factual issues do not appear to be complex.
Nor has Plaintiff alleged any special circumstances that would lead the Court to conclude that he
is not capable to proceed on his own behalf or that set his case apart from those of other
incarcerated individuals proceeding pro se in federal court. Finally, the merits of Plaintiff’s claims
will likely be decided when the District Judge rules on Defendants’ pending motion to dismiss
(Dkt. 35). On balance, the relevant factors weigh against appointing counsel under § 1915(e)(1) at
this time. Plaintiff may file a renewed motion for appointment of counsel after the District Judge
rules on Defendants’ motion to dismiss (Dkt. 35).
IT IS THEREFORE ORDERED that Plaintiff’s motion requesting the appointment of
counsel (Dkt. 34) is denied without prejudice. Plaintiff may file a renewed motion for appointment
of counsel after the District Judge rules on Defendants’ motion to dismiss (Dkt. 35).
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A copy of this Order will be mailed to Plaintiff.
IT IS SO ORDERED.
Dated September 30, 2026, at Kansas City, Kansas.
Jennifer B. Wieland
U. S. Magistrate Judge
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