F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 24, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DERRICK R. PARK HU RST,
Plaintiff-Appellant,
v. No. 06-8047
(D.C. No. 05-CV-135-CAB)
PITTSB UR GH PA IN TS IN C; JUDY (D . W yo.)
UPH OFF, Director, W yoming
Department of Corrections; M ALVIN
COLE; SCOTT ABBOTT, W arden,
W yoming Department of Corrections
State; JO H N CO Y LE; B RU CE A.
D A N IELS; R OB ER T E. O RTEGA,
Director, W yoming Department of
Corrections in their official capacities;
JAM ES DAV IS; M . R.
ENG ELSJGER D; JAM ES
FERGUSON; W ILLIAM HETTGAR;
R OBER T LA M PER T; JO H N PEERY;
M ICHAEL ROSS; GARY
STARBUCK; VANCE EVERETT; and
John Does 1-20,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
Plaintiff-appellant Derrick R. Parkhurst, a prisoner at the W yoming State
Penitentiary Complex (Penitentiary), appeals from the district court’s grant of
summary judgment on (1) his diversity product-liability claim against
defendant-appellee Pittsburgh Paints, Inc., and (2) his federal law claims against
the remaining defendants-appellees under 42 U.S.C. § 1983 and 18 U.S.C.
§ 1964(c). The district court granted summary judgment to all defendants. The
court held that the product-liability claim against Pittsburgh Paints and the § 1983
claims against the remaining defendants-appellees (State Defendants) were barred
by the applicable W yoming statutes of limitation. The court further held that the
RICO claim against the State Defendants failed because (1) the only remedy
provided for a RICO violation was for injury to business or property and
M r. Parkhurst had only claimed personal injury, and (2) the RICO claim was
time-barred. On appeal, M r. Parkhurst claims that the district court erred in
(1) granting summary judgment on the ground that his product liability and
§ 1983 claims were barred by the applicable statutes of limitation, and
(2) denying his motion to have counsel appointed.
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DISCUSSION
“W e review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Simms v. Okla.
ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326
(10th Cir. 1999). Summary judgment should be granted “if the pleadings,
depositions, answ ers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “W hen applying this standard, we view the evidence and
draw reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Sim m s, 165 F.3d at 1326.
“There is no constitutional right to appointed counsel in a civil case.”
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). As recognized by the
district court, however, it had the power to “request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). “The burden is upon
the applicant to convince the court that there is sufficient merit to his claim to
warrant the appointment of counsel.” M cCarthy v. Weinberg, 753 F.2d 836, 838
(10th Cir. 1985). This decision is left to the sound discretion of the district court
and “will not be overturned unless it would result in fundamental unfairness
impinging on due process rights.” W illiams v. M eese, 926 F.2d 994, 996
(10th Cir. 1991).
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Following review of the parties’ materials and the record on appeal, and
keeping the above standards of review foremost in mind, we affirm the district
court’s grant of summary judgment to defendants-appellees for substantially the
reasons stated in the thorough and well-reasoned order filed by the district court
judge on M ay 17, 2006. Similarly, we affirm the district court’s denials of
M r. Parkhurst’s numerous motions seeking appointment of counsel for
substantially the reasons set forth in those denials.
The judgment of the district court is therefore AFFIRM ED.
M r. Parkhurst’s motion to proceed on appeal without prepayment of costs and
fees is GRANTED, and he is reminded that he remains obligated to make partial
payments until the entire fee has been paid.
Entered for the Court
John C. Porfilio
Circuit Judge
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