Rozenberg v. Knight et al

Filing 38

AMENDED ORDER re: 37 Mr. Rozenberg's Motion for the Appointment of Counsel (amended to correct the date of signature of the Order). By Magistrate Judge Craig B. Shaffer on 06/05/2012. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00431-WJM-CBS
SAM ROZENBERG,
Plaintiff,
v.
JUDITH KNIGHT, and
MIKE PEREZ,
Defendants.
________________________________________________________________________
AMENDED ORDER1
_______________________________________________________________________
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on Plaintiff Mr. Rozenberg’s “Motion for the
Appointment of Counsel” (filed June 4, 2012) (Doc. # 35). Pursuant to the Order of
Reference dated March 21, 2012 (Doc. # 16) and the memorandum dated June 4, 2012
(Doc. # 36), this matter was referred to the Magistrate Judge. The court has reviewed the
Motion, the entire case file, and the applicable law and is sufficiently advised in the
premises.
Mr. Rozenberg was granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 on February 24, 2012. (See Doc. # 5). Indigent civil litigants have no
constitutional or statutory right to be represented by a lawyer. Merritt v. Faulkner, 697 F.2d
761, 763 (7th Cir. 1983). Pursuant to 28 U.S.C. § 1915(e)(1), the court “may request an
attorney to represent any person unable to afford counsel.” See also Johnson v. Howard,
20 F. Supp. 2d 1128, 1129 (W.D. Mich. 1998) (a court may request counsel to represent
an indigent plaintiff in an “exceptional case”). However, § 1915(e)(1) does not authorize
“compulsory assignments of attorneys” or “coercive appointments of counsel.” Mallard v.
United States District Court for the Southern Dist. of Iowa, 490 U.S. 296, 300-310 (1989).

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Amended to correct the date of issuance of the Order on page 2.
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Whether to request counsel is left to the sound discretion of the trial court. Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). “[T]he district court has broad
discretion to appoint counsel for indigents . . . , 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) (applying 28 U.S.C. §
1915(d), amended and renumbered as § 1915(e)(1)) (internal quotation marks and citation
omitted). In deciding whether to request counsel for an indigent civil litigant, the district
court should evaluate "the merits of a [litigant’s] claims, the nature and complexity of the
factual issues, and the [litigant’s] ability to investigate the facts and present his claims."
Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted).
"The burden is on the applicant to convince the court that there is sufficient merit to his
claim to warrant the appointment of counsel." Hill, 393 F.3d at 1115 (citation omitted).
"Only in those extreme cases where the lack of counsel results in fundamental unfairness
will the district court's decision be overturned." Hill, 393 F.3d at 1115 (citation omitted).
The court has considered Mr. Rozenberg’s request for appointed counsel and the
appropriate factors. As a pro se litigant, Mr. Rozenberg is afforded a liberal construction
of his papers.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Contrary to Mr.

Rozenberg’s characterization, his claims are not particularly complex and, even if proved,
would not “establish multiple constitutional violations.” The likelihood of a trial is unclear
at this stage of the litigation. The merits of Mr. Rozenberg’s claims do not at this time
provide an adequate basis for the court to request counsel to volunteer to represent him.
Accordingly, IT IS ORDERED that Plaintiff Mr. Bingaman’s “Motion for the
Appointment of Counsel” (filed June 4, 2012) (Doc. # 35) is DENIED.
DATED at Denver, Colorado, this 3rd 5th day of May June, 2012.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
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