Overstreet v. University of Kansas Hospital Authority, The et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAREN OVERSTREET, 	)
)
Plaintiff, 	) 	CIVIL ACTION
)
v. 	) 	No. 25-2735-KHV
)
THE UNIVERSITY OF KANSAS 	)
HOSPITAL AUTHORITY, et al., 	)
)
Defendants. 	)
____________________________________________)
MEMORANDUM AND ORDER
On December 10, 2025, plaintiff filed suit against the University of Kansas Hospital
Authority, individuals on its medical and security staff, the University of Kansas Police
Department and others. Plaintiff asserts that defendants violated her rights under the Americans
With Disabilities Act, 42 U.S.C. § 12101, et seq., the Rehabilitation Act, 29 U.S.C. § 701, et seq.
and the Emergency Medical Treatment And Active Labor Act, 42 U.S.C. § 1395dd; violated and
conspired to violate her rights under 42 U.S.C. § 1983; and falsified medical records in violation
of federal and state law. 	On February 26, 2026, Magistrate Judge Brooks G. Severson granted
plaintiff’s motion to proceed without prepayment of fees, denied her request for counsel and
recommended that the Court dismiss plaintiff’s Amended Complaint (Doc. #13) filed February 18,
2026. See Memorandum & Order Granting Motion To Proceed Without Prepayment Of Fees And
Denying Request For Counsel (Doc. #17); Report And Recommendation For Dismissal Of
Complaint (Doc. #18).
This matter is before the Court on plaintiff’s Response To Report And Recommendation
For Dismissal Of Complaint And Request To Appeal Denial Of Counsel (Doc. #21) filed
March 13, 2026, which the Court construes as an objection under Rule 72, Fed. R. Civ. P. 	For
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reasons stated below, the Court adopts Judge Severson’s Report And Recommendation (Doc. #18)
in part but grants plaintiff leave to amend her complaint and overrules plaintiff’s objection to Judge
Severson’s order which denied plaintiff’s request for counsel.
Analysis
The Court affords a pro se plaintiff some leniency and liberally construes her filings. See
James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Although the Court holds a pro se litigant’s
filings to a less stringent standard than formal pleadings drafted by attorneys, a pro se party must
follow the same rules of procedure as all other litigants. See Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
I. 	Recommendation To Dismiss Complaint
Judge Severson recommended dismissal of plaintiff’s complaint because it (1) did not
satisfy the pleading standard of Rule 8, Fed. R. Civ. P., (2) improperly included claims under
criminal statutes and (3) named the University of Kansas Police Department, which lacks capacity
to be sued. Plaintiff objects to Judge Severson’s recommendation.
Upon objection to a magistrate judge report and recommendation on a dispositive matter,
the Court reviews de novo those portions of the report and recommendation to which a party
objects. See Fed. R. Civ. P. 72(b)(3). The Court may accept, reject or modify, in whole or in part,
the magistrate judge recommendations or findings. See id.
For substantially the reasons stated in Judge Severson’s Report And Recommendation
(Doc. #18), the Court adopts her recommendation to dismiss plaintiff’s claims which rely on
enforcement of criminal statutes (Count VI) and all claims against the University of Kansas Police
Department. The Court therefore dismisses Count VI against all defendants and all claims against
the University of Kansas Police Department.
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As to plaintiff’s remaining claims, the Court agrees with Judge Severson that plaintiff’s
amended complaint does not comply with Rule 8. Plaintiff’s amended complaint improperly refers
to defendants collectively without distinguishing which specific entity or individual took certain
actions. Absent such specificity, plaintiff has not adequately pled a “short and plain statement of
the claim” against each defendant. Fed. R. Civ. P. 8(a)(2). In plaintiff’s objection to the report
and recommendation, she has identified specific actions of individual defendants. Based on this
information, plaintiff might be able to cure the deficiencies in the amended complaint set forth in
Judge Severson’s report and recommendation. See Report And Recommendation (Doc. #18) at
6–8. The Court therefore rejects Judge Severson’s recommendation to dismiss plaintiff’s claims
in Counts I through V, VII and VIII. On or before May 29, 2026, plaintiff may file an amended
complaint which complies with Rule 8 and specifically states actionable claims against each
defendant.
II. 	Appointment Of Counsel
In determining whether to appoint counsel, courts consider several factors including (1) the
merit of the litigant’s claims; (2) the nature and complexity of the factual and legal issues raised
in the claims; (3) the litigant’s ability to present his or her claims; and (4) whether the litigant can
afford counsel and whether the party has made a diligent effort to retain an attorney. See Hill v.
SmithLine Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). Applying these factors, Judge
Severson denied plaintiff’s request for counsel. Judge Severson found that the second and fourth
factors were neutral, but that the first and third factors weighed in favor of denial of counsel. See
Memorandum & Order (Doc. #17) at 3–4. Plaintiff objects.
When reviewing a magistrate judge’s order on a non-dispositive matter, the Court must
consider timely objections and modify or set aside any part of the magistrate judge’s order that is
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clearly erroneous or is contrary to law. 	Fed. R. Civ. P. 72(a). 	A litigant does not have a
constitutional right to appointed counsel in a civil case. 	Durre v. Dempsey, 869 F.2d 543, 547
(10th Cir. 1989) (per curiam). Even so, under 28 U.S.C. § 1915(e)(1), the Court has discretion to
ask an attorney to represent a litigant who is proceeding in forma pauperis. 	See Johnson v.
Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). The applicant bears the burden of convincing the
Court that her claims have sufficient merit to warrant appointment of counsel. 	McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). Only when lack of counsel results in “fundamental
unfairness” to the applicant will the decision denying appointment of counsel be overturned. Id.
at 839.
Here, plaintiff has demonstrated no fundamental unfairness requiring the appointment of
counsel. As Judge Severson noted, plaintiff is articulate and able to express the basis of her claims.
While plaintiff states that she partly relied on ChatGPT to write her brief, she has not identified a
major physical or mental disability, and she has demonstrated the requisite knowledge to prosecute
her claims.1 Judge Severson therefore did not abuse her discretion in denying plaintiff’s request
for counsel. Accordingly, the Court overrules plaintiff’s objection.
IT 	IS 	THEREFORE 	ORDERED 	that 	plaintiff’s 	Response 	To 	Report 	And
1 	Plaintiff argues that the magistrate judge’s list of deficiencies in the amended
complaint suggests that she needs counsel. While counsel might help correct these deficiencies,
plaintiff has not shown that she is unable to do so on her own. Indeed, in plaintiff’s objection, she
has identified specific actions by individual defendants, which suggests that she has the ability to
amend her complaint to comply with Rule 8. In any event, the fact that counsel would be helpful
does not by itself warrant appointment of counsel. See Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995) (while appointed counsel would have assisted plaintiff in presenting strongest
possible case, same could be said in any case). 	The Court also recognizes that thoughtful and
prudent use of the appointment power is necessary so that willing counsel may be located without
the need to make coercive appointments. Castner v. Colo. Springs Cablevision, 979 F.2d 1417,
1421 (10th Cir. 1992).
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Recommendation For Dismissal Of Complaint And Request To Appeal Denial Of Counsel (Doc.
#21) filed March 13, 2026 is SUSTAINED in part and OVERRULED in part as to plaintiff’s
objection to Judge Severson’s recommendation of dismissal of all claims and OVERRULED
as to Judge Severson’s denial of plaintiff’s request for counsel.
IT IS FURTHER ORDERED that Magistrate Judge Brooks G. Severson’s Report And
Recommendation For Dismissal Of Complaint (Doc. #18) filed February 26, 2026 is ADOPTED
in part and REJECTED in part. 	The Court adopts Judge Severson’s recommendation to
dismiss plaintiff’s claims which rely on enforcement of criminal statutes (Count VI) and all
claims against the University of Kansas Police Department. The Court therefore dismisses
Count VI of plaintiff’s Amended Complaint (Doc. #13) filed February 18, 2026 and all claims
against the University of Kansas Police Department. 	The Court rejects Judge Severson’s
recommendation to dismiss plaintiff’s remaining claims. 	On or before May 29, 2026,
plaintiff may file an amended complaint which complies with Rule 8, Fed. R. Civ. P.
Dated this 11th day of May, 2026 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge
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