Limburg (ID 2000077784) v. Kansas Department of Corrections et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL LIMBURG,
Plaintiff,
v. 	CASE NO. 25-3130-JWL
KANSAS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff filed this pro se civil rights action under 42 U.S.C. § 1983. 	The Court granted
Plaintiff leave to proceed in forma pauperis. 	Plaintiff is currently confined at the Ellsworth
Correctional Facility in Ellsworth, Kansas. On November 14, 2025, the Court entered a
Memorandum and Order (Doc. 13) dismissing this case. 	On November 17, 2025, Plaintiff filed
a Notice of Appeal (Doc. 15) and a Motion for Appointment of Counsel (Doc. 16).
Plaintiff argues that the assistance of counsel is necessary to effectively represent him, and
that he is financially unable to pay an attorney to represent him. 	(Doc. 16, at 1.) 	The Court has
considered Plaintiff’s motion for appointment of counsel. 	There is no constitutional right to
appointment of counsel in a civil case. 	Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995).
“Rather, a court has discretion to request an attorney to represent a litigant who is proceeding in
forma pauperis” in a civil case. 	Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006)
(emphasis added) (citing 28 U.S.C. § 1915(e)(1)). 	In other words, if this motion is granted, it
means only that the Court will request that an attorney volunteer to be appointed to represent
Plaintiff at no cost to Plaintiff. 	The Court cannot guarantee that an attorney will volunteer. 	See
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Rachel v. Troutt, 820 F.3d 390, 396 (10th Cir. 2016) (“Courts are not authorized to appoint counsel
in § 1983 cases; instead, courts can only ‘request’ an attorney to take a case.”).
The decision whether to appoint counsel—meaning to request counsel to provide
representation at no cost to Plaintiff—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 appointment of counsel. 	Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (citing 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 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to request volunteer counsel for Plaintiff, the Court has considered
“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.” 	Rucks, 57 F.3d at 979; Hill,
393 F.3d at 1115. 	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 Plaintiff filing a motion for appointment of counsel with the Tenth
Circuit.
The Court also notes that Plaintiff has failed to either pay the appellate filing fee or to file
a motion for leave to appeal in forma pauperis.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of Counsel
(Doc. 16) is denied without prejudice.
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IT IS SO ORDERED.
Dated November 25, 2025, in Kansas City, Kansas.
S/ 	John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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