Vreeland v. Suthers

Filing 106

ORDER Overruling 84 Plaintiff's APPEAL OF MAGISTRATE JUDGE DECISION to District Court; Denying as Moot 100 Plaintiff's Motion for Order to District Judge Philip A. Brimmer for a Ruling on Outstanding Objections and Motions, by Judge Philip A. Brimmer on 2/18/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01921-PAB-KMT
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
SERGEANT GRIGGS, CDOC/BVCF Mailroom,
Defendants.
_____________________________________________________________________
ORDER

This matter is before the Court on Plaintiff’s Objection to the United States
Magistrate’s Order [Docket No. 84] filed by plaintiff Delmart E.J.M. Vreeland, II. In light
of plaintiff’s pro se status, the Court reviews his filings liberally. See Haines v. Kerner,
404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991).
On October 17, 2013, plaintiff filed a motion for the appointment of counsel
[Docket No. 78]. Plaintiff, an indigent prisoner, argued that the appointment of counsel
was necessary to enable plaintiff to acquire documents relevant to proving his claims.
Docket No. 78 at 3-4. On October 21, 2013, the magistrate judged denied plaintiff’s
motion, finding that plaintiff had demonstrated an ability to prosecute his claims.
Docket No. 80 at 2. Specifically, the magistrate judged noted that plaintiff successfully
defended many of his claims against defendants’ motion to dismiss [Docket No. 19] and
that plaintiff could address his concerns regarding discovery by filing a motion to
compel pursuant to Fed. R. Civ. P. 37. Docket No. 80 at 2. In the present motion,

plaintiff requests that the Court reverse the magistrate judge’s order and appoint
counsel. Docket No. 84 at 6. Plaintiff also filed a motion asking the Court for an
expedited ruling. Docket No. 100 at 2-3.
Generally, district courts review magistrate judges’ orders regarding
nondispositive motions under a “clearly erroneous or contrary to law” standard. 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). Under this standard of review, a
magistrate judge’s finding should not be rejected merely because the Court would have
decided the matter differently. See Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985). A district court must affirm a magistrate judge’s decision unless “‘on the
entire evidence[, the district court] is left with the definite and firm conviction that a
mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)); Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006).
Civil litigants have no constitutional right to counsel. Johnson v. Johnson, 466
F.3d 1213, 1217 (10th Cir. 2006). However, the Court has discretion to request an
attorney to represent an incarcerated, pro se plaintiff who is unable to afford private
counsel. 28 U.S.C. § 1915(e)(1). A pro se plaintiff’s request for the appointment of
counsel must be evaluated in light of “the merits of a 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.” Hill v. SmithKline Beecham Corp, 393 F.3d 1111, 1115
(10th Cir. 2004). “The burden is upon the applicant to convince the court that there is
sufficient merit to his claim to warrant the appointment of counsel.” McCarthy v.

2

Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
Plaintiff requests the appointment of counsel for several reasons. First, he
argues that, without an attorney, he will not be permitted to access certain documents
relevant to his claims. Docket No. 84 at 4. Second, plaintiff argues that he requires an
attorney to gain access to physical evidence and gather information from the United
States Postal Service website. Id. at 5. Third, plaintiff claims that only appointed
counsel can properly litigate his case. Id. at 6.
The Court find no clear error in the magistrate judge’s findings. With respect to
the merits of plaintiff’s claims, four of plaintiff’s First Amendment claims survived a
motion to dismiss. However, the Court agrees with the magistrate judge that plaintiff’s
remaining First Amendment claims are not particularly complex or difficult to analyze.
Plaintiff’s filings up to this point have demonstrated an understanding of the legal and
factual issues at stake. See Steffey v. Orman, 461 F.3d 1218, 1224 (10th Cir. 2006)
(noting that indigent prisoner “adequately presented the factual and legal basis of his
claim and demonstrated that he understood the basics of his due-process property
interest claim”). With respect to plaintiff’s concerns regarding discovery, plaintiff has
filed a request for production [Docket No. 99] and a motion seeking to resolve
outstanding discovery disputes [Docket No. 101], which demonstrate his ability to use
the Federal Rules of Civil Procedure to conduct discovery and resolve discovery-related
disputes. Plaintiff’s assertion that an attorney is necessary to properly litigate this case
is, by itself, insufficient for the Court to find that appointment of counsel is warranted at
this time. See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (holding that, where
indigent prisoner showed ability to effectively prosecute his claims, indigent prisoner’s
3

assertion that appointed counsel would assist “in presenting his strongest possible
case” was insufficient to justify appointment of counsel).
The Court next turns to plaintiff’s motion for a ruling. Plaintiff’s motion alleges
that he was excused from his inmate job assignment and was placed on lockdown.
Docket No. 100 at 2-3. However, plaintiff fails to show how those recent events have
frustrated his ability to prosecute his claims to the point where the appointment of
counsel is warranted.
For the foregoing reasons, it is
ORDERED that Plaintiff’s Objection to the United States Magistrate’s Order
[Docket No. 84] is OVERRULED. It is further
ORDERED that plaintiff’s Motion to District Judge Philip A. Brimmer for a Ruling
on Outstanding Objections and Motions [Docket No. 100] is DENIED as moot.

DATED February 18, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

4