Royal Russell Long v. Duane Shillinger, 927 F.2d 525 (10th Cir. 1991). · Go Syfert
Search
Royal Russell Long v. Duane Shillinger, 927 F.2d 525 (10th Cir. 1991). Cases Citing This Book View Copy Cite
88 citation events (69 in the last 25 years) across 10 distinct courts.
Strongest positive: Ochoa v. Social Security Administration, Commissioner of (ksd, 2025-09-11)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) Ochoa v. Social Security Administration, Commissioner of
D. Kan. · 2025 · confidence medium
Id.; Hill, 393 F.3d at 1115 ; Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)).
examined Cited as authority (rule) Skinner v. Prummell (3×)
D.N.M. · 2024 · confidence medium
Defendants argue that Plaintiff cannot state a plausible extradition claim pursuant to Long v. Shillinger, 927 F.2d 525, 526 (10th Cir. 1991).
discussed Cited as authority (rule) Sterling v. Hill
W.D. Ark. · 2022 · confidence medium
If “the 7 extradition itself was justified, even though the procedures used to accomplish it were deficient . . . , [a] plaintiff cannot recover for any injury caused by the extradition; he can [however] recover for any injury, such as emotional distress, caused by the deprivation of due process itself.’” Id. at 1300 (quoting Long v. Shillinger, 927 F.2d 525, 528 (10th Cir. 1991)).
discussed Cited as authority (rule) Martinez v. Martinez
D.N.M. · 2022 · confidence medium
In determining whether to appoint counsel, “the district court should 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 the legal issues raised by the claims.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991).
discussed Cited as authority (rule) Graves v. Federal Express Corp.
D. Kan. · 2022 · confidence medium
Plaintiff alleges he has “understanding and memory problems and concentration and persistence problems,”6 but he does not explain how the problems affect his ability to 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
discussed Cited as authority (rule) Lawson v. Kansas, State of
D. Kan. · 2021 · confidence medium
Nov. 14, 2012) (citing Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995) and Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)). 2Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). of the factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity of the legal issues raised by the claims.”3 The court also considers the efforts made by the litigant to retain his own counsel.4 The court does not find it appropriate to appoint counsel for plaintiff.
discussed Cited as authority (rule) Brown v. Kansas, State of
D. Kan. · 2021 · confidence medium
Nov. 14, 2012) (citing Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995) and Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)). 2Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). of the factual issues raised in the claims, the litigant’s ability to present her claims, and the complexity of the legal issues raised by the claims.”3 The court also considers the efforts made by the litigant to retain her own counsel.4 The court does not find it appropriate to appoint counsel for plaintiff.
discussed Cited as authority (rule) Graves v. Federal Express Corp.
D. Kan. · 2021 · confidence medium
Plaintiff alleges that after he was injured at work and became disabled, defendant terminated him when he asked for medical leave 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
cited Cited as authority (rule) Rowan v. Social Security Administration, Commissioner of
D. Kan. · 2021 · confidence medium
Id.; Hill, 393 F.3d at 1115 ; Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)).
discussed Cited as authority (rule) Braithwaite v. United States Department of Justice
D. Kan. · 2021 · confidence medium
In the end, the court concludes that this is not a case in which 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
cited Cited as authority (rule) LaCost v. Social Security Administration, Commissioner of
D. Kan. · 2021 · confidence medium
Id.; Hill, 393 F.3d at 1115 ; Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)).
discussed Cited as authority (rule) Harris-Mitchell v. Ferriero
D. Kan. · 2021 · confidence medium
Plaintiff alleges she was not promoted after filing reports with the Equal Employment Opportunity Commission about the “discriminatory acts” of supervisors.6 She alleges supervisors discriminate against black employees, such as by plotting to fire them and making racist comments on 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
discussed Cited as authority (rule) Chumba v. Kiehl
D. Kan. · 2020 · confidence medium
The court has no doubt that the district judge assigned 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
discussed Cited as authority (rule) Donahue v. Kansas Board of Education
10th Cir. · 2020 · confidence medium
The district court explained that the magistrate judge “reasonably applied the factors of Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) and recognized there is no constitutional right to appointed counsel in civil actions.” R., Vol. I at 343.
cited Cited as authority (rule) Rowan v. Social Security Administration, Commissioner of
D. Kan. · 2020 · confidence medium
Id.; Hill, 393 F.3d at 1115 ; Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)).
discussed Cited as authority (rule) Quintana v. Trani
10th Cir. · 2020 · confidence medium
The district court’s denial of counsel “will not be overturned unless it would result in fundamental unfairness impinging on due process rights.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981) (per curiam), abrogated on other grounds by Farmer v. Haas, 990 F.2d 319 , 321–22 (7th Cir. 1993)). 3 3 In Farmer, the Seventh Circuit abrogated Maclin’s multifactor test for whether a court abused its discretion in denying an indigent’s motion for appointment of (continued...) 7 “In determining whether to appoint counsel,…
cited Cited as authority (rule) Clary (ID 96959) v. Cline
D. Kan. · 2020 · confidence medium
Dated: February 28, 2020 S/ Julie A. Robinson JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991).
discussed Cited as authority (rule) Watson v. USD 500
D. Kan. · 2020 · confidence medium
Finally, based on the limited factual allegations and claims presented in the complaint and response to the motion to dismiss, 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
discussed Cited as authority (rule) Williams v. Vince & Associates Clinical Research, LLC
D. Kan. · 2020 · confidence medium
Finally, based on the limited factual allegations and claims presented in the complaint, the court is unable to determine whether plaintiff’s claims are particularly meritorious. 3Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). 4Id. 5Lister v. City of Wichita, Kan., 666 F. App’x 709, 713 (10th Cir. 2016) (quoting Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992)); Tilmon v. Polo Ralph Lauren Factory Store, No. 17-2383-JAR, 2017 WL 3503678 , at *1 (D.
discussed Cited as authority (rule) Porter v. Graves
D. Kan. · 2019 · confidence medium
In determining whether to appoint counsel, a district court should consider “’the merits of the litigant’s claims, the litigant’s ability to present his claims, and the complexity of the legal issues raised by the claims.’” Skinner v. Uphoff, 175 Fed.Appx. 255, 260-61 (10th Cir. 2006)(quoting Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991)).
discussed Cited as authority (rule) Winn v. Ensign U-Healthcare Resort of Leawood
D. Kan. · 2019 · confidence medium
Based 2Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992). 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
cited Cited as authority (rule) Braithwaite v. United States Department of Justice
D. Kan. · 2019 · confidence medium
Plaintiff’s 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
discussed Cited as authority (rule) Perrigo v. MidAmerica Rehabilitation Hospital
D. Kan. · 2019 · confidence medium
Nov. 14, 2012) (citing Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995) and Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)). 11 Commodity Futures Trading Comm’n v. Brockbank, 316 F. App=x. 707, 712 (10th Cir. 2008) (upholding denial of defendant’s motions for counsel). 12 Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). 3 issues raised by the claims.” The court also considers the efforts made by the litigant to retain his own counsel.14 The court does not find it appropriate to appoint counsel for plaintiff.
discussed Cited as authority (rule) Dorch v. Magna Automotive Systems
D. Kan. · 2019 · confidence medium
Nov. 14, 2012) (citing Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995) and Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)). 6 Commodity Futures Trading Comm’n v. Brockbank, 316 F. App=x. 707, 712 (10th Cir. 2008) (upholding denial of defendant’s motions for counsel). 7 Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991). 8 Id. 9 Lister v. City of Wichita, Kan., 666 F. App’x 709, 713 (10th Cir. 2016) (quoting Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992)); Tilmon v. Polo Ralph Lauren Factory Store, No. 17-2383-JAR, 2017 WL 3503678 , at *1 (D.
discussed Cited as authority (rule) Akins v. ColdPoint Logistics
D. Kan. · 2019 · confidence medium
Finally, based on the limited factual allegations and claims presented in the complaint, the court is unable to 3Id. 4Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700 , at *1 (D.
discussed Cited as authority (rule) Franklyn Prillerman v. City of Philadelphia
3rd Cir. · 2017 · confidence medium
They argue that, while a plaintiff raising a claim like Prillerman’s might potentially be permitted to “recover for any injury, such as emotional distress, caused by the deprivation of due process itself,” Harden v. Pataki, 320 F.3d 1289, 1300 (11th Cir. 2003) (quoting Long v. Shillinger, 927 F.2d 525, 528 (10th Cir. 1991)), Prillerman cannot do so because he did not suffer a physical injury and the Prison Litigation Reform Act (PLRA) requires that “a prisoner demonstrate physical injury before he can recover for mental or emotional injury.” Mitchell v. Horn, 818 F.3d 523, 533 (3d Ci…
discussed Cited as authority (rule) Kingyon v. State of Kansas
10th Cir. · 2014 · confidence medium
He has not shown — beyond groundless averments of manifest injustice — that denial of counsel would “result in fundamental unfairness.” See Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991) (internal quotation marks omitted).
discussed Cited as authority (rule) In re Lamont
Ohio Ct. App. · 2013 · confidence medium
R.C. 2963.30, Article IV(a). {¶12} “Prisoners transferred pursuant to the provisions of the [IAD] are not required to forfeit any pre-existing rights they may have under state or federal law to challenge their transfer to the receiving State.” Cuyler v. Adams, 449 U.S. 433, 450 , 101 S.Ct. 703 (1981); Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
discussed Cited as authority (rule) Fleming v. Evans
10th Cir. · 2013 · confidence medium
Nor do we discern, from the district court’s failure explicitly to address Faulk’s performance before denying Fleming’s Motion for Appointment of Counsel, any other “fundamental unfairness impinging on due process rights.” 4 See Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
cited Cited as authority (rule) Culp v. Williams
10th Cir. · 2012 · confidence medium
See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.2004); Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
discussed Cited as authority (rule) Purkey v. State of Kansas
10th Cir. · 2008 · confidence medium
“The district courtfs] ... denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991) (quotations and alteration omitted).
discussed Cited as authority (rule) Parkhurst v. Uphoff
10th Cir. · 2006 · confidence medium
In determining whether to appoint counsel, the district court must consider “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 the legal *261 issues raised by the claims.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
cited Cited as authority (rule) Quick v. Mann
10th Cir. · 2006 · confidence medium
Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
cited Cited as authority (rule) Griffin v. Suthers
10th Cir. · 2005 · confidence medium
Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
discussed Cited as authority (rule) Inman v. State of Kansas (2×) also: Cited "see"
10th Cir. · 2005 · confidence medium
“The district court[’s] . . . denial of counsel will not be overturned unless it would 2 Though Inman frames his fourth argument on appeal as a critique of the district court’s ruling on his § 2254 petition, the substance of the argument is that trial counsel was ineffective because counsel failed to call two witnesses or fully investigate their possible exculpatory testimony—the same argument that Inman raised in his § 2254 petition. -4- result in fundamental unfairness impinging on due process rights.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (quotations and alterat…
discussed Cited as authority (rule) Rogers v. Federal Bureau of Prisons
10th Cir. · 2004 · confidence medium
We will not reverse its decision unless the denial “would result in fundamental unfairness impinging on due process rights.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (quotation omitted). *983 Because Mr. Rogers appears pro se, in determining whether his pleadings establish jurisdiction and state a recognized legal claim, we construe his pleadings liberally and hold them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). “[T]his rule means that if a court can reasonably read the pleadings to stat…
discussed Cited as authority (rule) Major Harden v. George E. Pataki
11th Cir. · 2003 · confidence medium
Accordingly, we agree with the Tenth Circuit’s conclusion that, if “the extradition itself was justified, even though the procedures used to accomplish it were deficient ..., [a] plaintiff cannot recover for any injury caused by the extradition; he can [however] recover for any injury, such as emotional distress, caused by the deprivation of due process itself.” Long v. Shillinger, 927 F.2d 525, 528 (10th Cir.1991); see also Draper, 792 F.2d at 921 (concluding that “dismissing prisoner’s § 1983 claim based on unlawful extradition] on the ground that he was ultimately convicted of th…
discussed Cited as authority (rule) Edwards v. Potter
10th Cir. · 2003 · confidence medium
In response to his initial request for counsel, the magistrate judge to whom the matter was referred denied the request on the ground that Mr. Edwards failed to provide any information to the court that would enable it to conclude whether counsel should be appointed under the factors outlined Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991).
discussed Cited as authority (rule) Loftin v. Dalessandri
10th Cir. · 2001 · confidence medium
In deciding whether to appoint counsel, “the district court should 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 the legal issues raised by the claims.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991); see also Rucks, 57 F.3d at 979 (“[I]f the plaintiff has a colorable claim then the district court should consider the nature of the factual issues and the ability of the plaintiff to investigate the crucial facts.” (quotation…
discussed Cited as authority (rule) Scott v. Galetka
10th Cir. · 1997 · confidence medium
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). "'[T]he district court has broad discretion to appoint counsel ... and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.'" Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)). 1 Case No. 95-C-1078J is a different case than the instant Scott v. Galetka, which the Utah district court referenced as No. 96-C-399B. -4- Because we believe the allegations in Mr. Scott's complaint lack merit, the court's fail…
discussed Cited as authority (rule) Howard A. Scott v. Hank Galetka, Warden Wally Shulsen, Deputy Warden, Oquirrh Dan Azis, Oquirrh One Paul Garden Rick Corsi, Oquirrh One Jodi Scott, Oquirrh One Steve S. Miner and Billie Casper, Howard A. Scott v. Kenneth White, Officer
10th Cir. · 1997 · confidence medium
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.1989). " '[T]he district court has broad discretion to appoint counsel ... and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.' " Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981)).
discussed Cited as authority (rule) Duke v. Hawk
10th Cir. · 1997 · confidence medium
Pursuant to 28 U.S.C. § 1915 (e)(1), the district court "may request an attorney to represent any person unable to afford counsel." However, the district court has broad discretion to appoint counsel and "'its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.'" Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)).
discussed Cited as authority (rule) Garcia v. Furlong
10th Cir. · 1996 · confidence medium
Denial of counsel under this statute will not be overturned " 'unless it would result in fundamental unfairness impinging on due process rights.' " Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991)(quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981)).
discussed Cited as authority (rule) Moomchi v. Univ Of New Mexico
10th Cir. · 1995 · confidence medium
Id. at 887-89 . 13 Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991). 14 As to the merits of Moomchi's action, we agree with UNM that the applicable three year statute of limitations bars most of the claims. 8 See Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), aff'd, 471 U.S. 261 (1985); N.M.
discussed Cited as authority (rule) Larnell Lee Dykes v. Mike Hill, Sheriff, Sedgwick County, Kansas John Doe (1), Administrator John Doe (2), Processing Officer
10th Cir. · 1994 · confidence medium
The district court has broad discretion as to the appointment of counsel, Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991), and as to allowable discovery, Martinez v. Schock Transfer & Warehouse Con., 789 F.2d 848, 850 (10th Cir.1986).
discussed Cited as authority (rule) Dee Farmer v. Richard Haas, Edward J. Brennan, and L.E. Dubois
7th Cir. · 1993 · confidence medium
Although Maclin v. Freake has been cited approvingly by many courts, see, e.g., Hodge v. Police Officers, supra, 802 F.2d at 61 , and adopted by the Tenth Circuit, Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991), most courts prefer a simpler formulation similar to that suggested above.
discussed Cited as authority (rule) Gary Taylor Kruitbosch v. Fred Van De Veire Gary W. Deland Van O. Austin, Dr. Bob Steele Mike Jenson Gary Fulkerson
10th Cir. · 1992 · confidence medium
Id. 5 Plaintiff complains that the district court erred in failing to appoint an attorney to represent him. " '[T]he district court has broad discretion to appoint counsel for indigents under 28 U.S.C. § 1915 (d), and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.' " Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981)).
discussed Cited as authority (rule) Joseph Lee Walker v. Brad Young, Correctional Officer, Utah State Prison
10th Cir. · 1992 · confidence medium
Long v. Shillinger, 927 F.2d 525, 526-27 (10th Cir.1991) (review of order denying appointment of counsel is for abuse of discretion); Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir.1987) (dismissal of claims reviewed for abuse of discretion).
discussed Cited as authority (rule) Thomas v. Daniels
10th Cir. · 1992 · confidence medium
On appeal plaintiff challenges the dismissal and the court's refusal to appoint counsel to assist him on his claim. 3 An indigent in a civil case is not entitled as of right to court-appointed counsel, Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991), and we can find no abuse of discretion in the court's denial here. 4 Plaintiff does not controvert any of the significant facts set forth in the magistrate judge's report.
discussed Cited "see" Castaneda v. State of Kansas
D. Kan. · 2024 · signal: see · confidence high
See Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (“In determining whether to appoint counsel, the district court should 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 the legal issues raised by the claims.”).
Retrieving the full opinion text from the archive…
Royal Russell LONG, Plaintiff-Appellant,
v.
Duane SHILLINGER, Defendant-Appellee
89-8091.
Court of Appeals for the Tenth Circuit.
Mar 6, 1991.
927 F.2d 525
Royal Russell Long, pro se., Josephine T. Porter, Sr. Asst. Atty. Gen., Cheyenne, Wyo., for defendant-appellee.
Anderson, Brorby, Tacha.
Cited by 73 opinions  |  Published
TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff, who is incarcerated in the Wyoming State Penitentiary, instituted this action against the warden seeking damages for the alleged violation of his civil rights, pursuant to 42 U.S.C. § 1983. Plaintiff alleged that the warden permitted Oklahoma to extradite plaintiff to stand trial on two kidnapping and two felony murder charges without affording him the process due under Wyoming’s extradition act, Wyo. Stat. §§ 7-3-201 to -227. Plaintiff asserted that if he had been afforded the process due him under the extradition act, including the opportunity to file a writ of habeas corpus and have a hearing thereon, he could have presented evidence that would have prevented the extradition. He alleged that as a result of being denied the opportunity to prevent the extradition, he incurred attorney’s fees in defense of the Oklahoma charges, as well as expenses for food while incarcerated in the county jail in Oklahoma. [1] In addition, plaintiff's life allegedly was put in jeopardy when an inmate with whom he was transported back to Wyoming tried to escape and momentarily acquired possession of an officer’s weapon. Plaintiff sought compensatory damages for the attorney’s fees and other expenses he incurred, as well as punitive damages in the amount of $10,000,000.

After the case was at issue, the district court ordered defendant to submit an affidavit setting forth his version of the events recited in the complaint, as well as all pertinent documentation concerning plaintiff’s extradition to Oklahoma and subsequent return to Wyoming. After defendant complied with this order and plaintiff responded, the court ordered plaintiff to submit a more definite statement of his damages and documentation thereof. Defendant then filed a motion for summary judgment on the grounds that the eleventh amendment barred any claims against him in his official capacity, and he was entitled to qualified immunity from any claims against him in his personal capacity. Plaintiff filed responses to both the motion for summary judgment and the order for more definite statement.

Thereafter, on October 10, 1989, the district court entered an order denying defendant’s motion for summary judgment and entering judgment in favor of plaintiff and against defendant in his official capacity. The court awarded plaintiff nominal damages of one dollar.

On October 21, 1989, plaintiff filed a second response to the order for more definite statement, as well as a motion to alter or amend the judgment pursuant to Fed.R. Civ.P. 59. Plaintiff asked the court to reconsider the award of nominal damages in light of the documentation of attorney’s fees incurred in Oklahoma attached to his second response, and to award him damages in the amount of $150,230 for attorney’s fees and $200,000 for pain and suffering. The district court denied plaintiff’s motion on October 23, 1989, and this appeal followed. [2]

Plaintiff argues on appeal that the district court erred in not appointing coun[*527] sel to represent him [3] and in awarding him only nominal damages. “[T]he district court has broad discretion to appoint counsel for indigents under 28 U.S.C. § 1915(d), and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights.” Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981). In determining whether to appoint counsel, the district court should 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 the legal issues raised by the claims. Id. at 887-89. Based upon our review of the record on appeal, we conclude the district court did not abuse its discretion in refusing to appoint counsel for plaintiff under the circumstances of this case.

The basis of plaintiff’s claim below was that he was transferred to Oklahoma to stand trial on charges without being advised of his right to file a petition for habeas corpus challenging the extradition and without having a hearing. Pursuant to Wyoming’s extradition act, a prisoner shall not be extradited without first being informed of the request for extradition and the crime(s) charged, as well as the right to demand legal counsel. Furthermore, if the prisoner wants to test the legality of the extradition, he must be taken before a judge who shall fix a reasonable time for the prisoner to file a writ of habeas corpus and shall set the time and place for a hearing thereon. Wyo.Stat. § 7-3-210.

Although plaintiff was transferred to Oklahoma pursuant to the Interstate Agreement on Detainers Act, codified in Wyoming at Wyo.Stat. §§ 7-15-101 to -105, he still was entitled to the rights provided him under Wyoming’s extradition act. See Cuyler v. Adams, 449 U.S. 433, 449-50, 101 S.Ct. 703, 712, 66 L.Ed.2d 641 (1981) (Interstate Agreement on Detainers Act does not require any prisoner transferred thereunder to give up any preexisting state or federal right to challenge the transfer; failure to afford a prisoner any such preexisting right constitutes a violation of the Interstate Agreement on De-tainers Act actionable under 42 U.S.C. § 1983).

Based on defendant’s affidavit and the documentation he provided concerning plaintiff’s extradition, the district court found that defendant violated plaintiff’s due process rights prior to extradition. The court then had to determine whether defendant’s violation of plaintiff’s rights caused plaintiff any injury. See Carey v. Piphus, 435 U.S. 247, 262, 98 S.Ct. 1042, 1051, 55 L.Ed.2d 252 (1978) (actual injury may not be presumed to flow from a violation of procedural due process; it must be proven). The district court recited that it was “hard pressed to see how plaintiff was injured through the extradition process, including his somewhat eventful return to Wyoming.” Rec.Vol. I, Doc. 23 at 6. We agree that plaintiff did not show any injury, though for a different reason than that stated by the district court. See Ware v. Unified School Dist. No. 492, 881 F.2d 906, 909 (10th Cir.1989) (we can affirm district court’s decision on any ground for which there is support in the record), modified in part, rehearing denied in part, 902 F.2d 815 (10th Cir.1990).

Plaintiff contended he was injured because he would have been able to prevent the extradition if given due process. Specifically, he said he would have presented evidence to the court through a habeas corpus petition that he was not guilty of the crimes charged. The inquiry in a habe-as proceeding concerning extradition is limited, however, to “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d)[*528] whether the petitioner is a fugitive.” Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978); see also Pfaff v. Wells, 648 F.2d 689, 691-92 (10th Cir.1981). Any court reviewing a ha-beas petition filed by plaintiff would not have been able to consider plaintiffs evidence that he was not guilty of the crimes charged, since “the courts of the asylum state are bound to accept the demanding state’s judicial determination ... that probable cause exists.” Michigan v. Doran, 439 U.S. at 290, 99 S.Ct. at 536; see also Cuyler v. Adams, 449 U.S. at 443 n. 11, 101 S.Ct. at 709 n. 11 (“The person being extradited has no right to challenge the facts surrounding the underlying crime_”).

Since plaintiff has not alleged that he could have prevented the extradition on one of the four grounds set forth in Michigan v. Doran, and since he could not, as a matter of law, have prevented the extradition by producing evidence that he was not guilty of the crimes charged, the extradition itself was justified, even though the procedures used to accomplish it were deficient. Under such circumstances, plaintiff cannot recover for any injury caused by the extradition; he can only recover for any injury, such as emotional distress, caused by the deprivation of due process itself. See Carey v. Piphus, 435 U.S. at 263, 98 S.Ct. at 1052.

The attorney’s fees and other expenses plaintiff incurred in Oklahoma flowed from the extradition, not the deprivation of due process. Therefore, they are not recoverable. Likewise, any emotional distress plaintiff suffered as a result of having to defend against serious charges in Oklahoma or as a result of having his life allegedly put in jeopardy on the return trip to Wyoming also flowed from the extradition rather than the deprivation of due process itself. [4] Since plaintiff did not allege, much less prove, that he suffered any injury as a result of the deprivation of due process alone, he was entitled to receive only nominal damages on his claim. See Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 983 n. 11, 108 L.Ed.2d 100 (1990); Carey v. Piphus, 435 U.S. at 266-67, 98 S.Ct. at 1054.

Plaintiff also argues on appeal that he was placed in solitary confinement on his return from Oklahoma without receiving due process. Although plaintiff mentioned that he was put in solitary confinement in his pleadings in the district court, he did not assert that his confinement was effected without due process. Therefore, to the extent plaintiff attempts to raise a separate claim on appeal based on his segregation, we will not consider it. See Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989) (“We will not consider on appeal those issues that were not raised in the district court.”).

The judgment of the United States District Court for the District of Wyoming is AFFIRMED.

1

. The record shows that plaintiff was extradited to Oklahoma on or about August 8, 1985, and returned to Wyoming on or about December 20, 1985. In the interim, plaintiff stood trial on the Oklahoma charges. Plaintiff alleged, and defendant does not dispute, that he was granted a judgment of acquittal on all charges at the conclusion of the prosecution’s case.

2

. The only party taking an appeal from the district court’s judgment is plaintiff; defendant has not appealed the entry of judgment against him in his official capacity.

3

. Defendant argues on appeal that we should not consider plaintiff's argument with respect to the appointment of counsel because plaintiff did not request that counsel be appointed in the district court. The record on appeal, however, shows that plaintiff clearly requested that counsel be appointed in his "Affidavit in Support of Response to (Order Requiring Affidavit of Warden).” Rec.Vol. I, Doc. 15.

4

. To the extent plaintiff sought to state a separate claim for relief arising out of the alleged threat to his life during the attempted escape of his fellow inmate, he failed to do so; his claim was subject to dismissal under Fed.R.Civ.P. 12(b)(6).