Lilly v. Hartley et al

Filing 28

ORDER. Plaintiffs Motion to Reconsider the Order Denying Motion for Court Appointed Attorney 26 is denied. By Magistrate Judge Michael E. Hegarty on 4/22/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02738-REB-MEH
CURTIS L. LILLY,
Plaintiff,
v.
MR. JASON FASSLER, Correctional Officer, Fremont Correctional Facility, and
MR. ROBERT BEAUMONT, Correction Officer, Fremont Correctional Facility,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion to Reconsider the Order Denying Motion for Court
Appointed Attorney [filed April 19, 2011; docket #26]. For the following reasons, the motion is
denied.
The Federal Rules of Civil Procedure do not provide a mechanism by which parties may seek
reconsideration of an order denying a court appointed attorney. However, courts have addressed
such requests on the following grounds: (1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.
See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Here, Plaintiff’s
motion refers to no “intervening change in controlling law” nor “the availability of new evidence.”
Thus, his motion is construed as brought under the third ground seeking to challenge the legal
correctness of the court’s order.
As set forth in this Court’s previous order, under 28 U.S.C. § 1915(e)(1), a district court may,

in its broad discretion, appoint counsel to an indigent party in a civil case. Williams v. Meese, 926
F.2d 994, 996 (10th Cir. 1991). However, civil litigants enjoy no constitutional right to an attorney,
Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (per curiam), and the Court does not have
funds available to pay an attorney who agrees to represent an indigent litigant in a civil case.
Therefore, the Court can seek volunteer counsel to represent a plaintiff if the Court determines in
its discretion that is appropriate to do so. The Clerk of the Court maintains a list of pro se cases for
which the court is seeking volunteer counsel.
The Court will only seek volunteer counsel for a pro se plaintiff if a consideration of the
following factors so warrants: (1) the merits of the litigant’s claims, (2) the nature of the factual
issues raised in the claims, (3) the plaintiff’s ability to present his claims, and (4) the complexity of
the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams,
926 F.2d at 996). A further consideration is whether there exist any special circumstances such as
those in McCarthy v. Weinberg, 753 F.2d 836, 837 (10th Cir. 1985), where the pro se plaintiff was
confined to a wheelchair, had poor eyesight, suffered from a speech impediment and memory lapses,
and had general difficulty in communications. See Rucks, 57 F.3d at 979.
Plaintiff contends in the present motion, which he implies is drafted by a “jail-house lawyer,”
that the Court failed to “a[c]knowledge the clear fact that the Plaintiff had a depressed skull fracture
which resulted in ‘brain surgery’” and “left the Plaintiff with numerous impairments, including
memory loss and speech impairment.” Plaintiff argues that, consistent with McCarthy, the Court
should have granted Plaintiff’s motion and sought volunteer counsel to represent him.
However, neither the original motion nor the present motion contains any affidavits or
declarations under oath attesting that the Plaintiff suffers mental or physical disabilities such as those

2

described in McCarthy. The operative Amended Complaint, which is executed under oath, describes
Plaintiff’s injuries from the December 2008 incident as follows: “... the said equipment [ ] physically
sucked/vaccumed [sic] the Plaintiff into a high speed fan props which resulted in a Depressed skull
fracture[,] spine damage and other injuries, and almost killing the plaintiff of un-natural causes,
including but not limited to the severe Phychological [sic] Stress of the entire ordeal; not to mention
that this plaintiff is now fully reduced and diminished in his motor-skill capacities while using a
cane to hobble around in order to perform the normal functions of his day to day life necessities.”
Amended Prisoner Complaint, docket #12 at 5. Thus, although the Plaintiff alleges he has suffered
mental/emotional distress from the incident and now uses a cane to walk, there is no indication from
the pleading that Plaintiff was/is mentally or physically incapacitated and/or suffers difficulties in
seeing, speaking, remembering, or communicating. Moreover, while the Plaintiff asserts that “it
would only be proper for this Honorable Court to at least look at the plaintiff’s Medical Records
concerning his injuries suffered” before denying Plaintiff’s original motion, the record indicates that
Plaintiff has not provided, and the record is devoid, of any copies of such medical records.
Based upon Plaintiff’s testimony currently before the Court, as well as his filings indicating
that he is capable of presenting his case, the Court finds that it was correct in determining
insufficient justification for placing the Plaintiff’s case on the volunteer attorney list. Accordingly,
based on the foregoing and the entire record herein, it is hereby ordered that Plaintiff’s Motion to
Reconsider the Order Denying Motion for Court Appointed Attorney [filed April 19, 2011; docket
#26] is denied.

3

Dated at Denver, Colorado, this 22nd day of April, 2011.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

4