Pipkins v. Taillon

Filing 36

ORDER denying without prejudice 32 Motion for an Extension of Time toAdhere to Scheduling Order, 33 Motion for Leave to Amend Complaint, and 34 Motion for an Appointment of Counsel. By Magistrate Judge Kristen L. Mix on 6/10/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02275-REB-KLM
ROBERT PIPKINS,
Plaintiff,
v.
TAILLON, actually named as Officer Mr. Taillon,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for an Extension of Time to
Adhere to Scheduling Order [Docket No. 32; Filed on May 31, 2013] (the “Extension of
Time Motion”), Motion for Leave to Amend Complaint [#33; Filed on May 31, 2013] (the
“Motion to Amend”), and Motion for an Appointment of Counsel [#34; Filed on May 31,
2013] (the “Motion for Counsel”).
In the Extension of Time Motion [#32], Plaintiff seeks “an extension of time to adhere
to scheduling hearing.” Extension of Time Motion [#32] at 1. However, Plaintiff fails to
state which deadlines discussed at the April 30, 2012 Scheduling Conference, see Minutes
[#30], he seeks to extend. If Plaintiff would like an extension of a deadline or multiple
deadlines, he must file a motion stating: the specific deadlines he is allegedly unable to
meet, the new deadlines he is requesting, and the reason for his request for an extension.

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In the Motion to Amend [#33], Plaintiff seeks leave to amend his Amended
Complaint [#12]. Conscious of the May 31, 2013 deadline for amendment of pleadings in
this matter, Plaintiff filed the timely Motion to Amend on May 31, 2013 [#33]. However,
Plaintiff failed to attach a proposed amended complaint.
In the Motion for Counsel [#34], Plaintiff requests that the Court appoint counsel to
represent him. The Court does not have the power to appoint an attorney without his or
her consent, Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989),
nor does the Court have funds available to pay an attorney who agrees to represent an
indigent litigant in a civil case. Nevertheless, 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. Placement on this list does not mean that a plaintiff will automatically receive
counsel. Rather, placement on the list results in representation being secured for the
plaintiff only if an attorney volunteers to represent him. Because of the number of cases
on the list and the shortage of volunteer attorneys, placement on the list frequently does
not result in counsel being obtained. In such circumstances, despite placement of his case
on the list, a pro se plaintiff remains responsible for litigating his case himself.
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 plaintiff’s claims; (2) the nature of
the factual issues raised in the claims; (3) the plaintiff’s ability to present his claims himself;
and (4) the complexity of the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)). A further
consideration is whether there exist any special circumstances such as those in McCarthy
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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.
In this case, Plaintiff has demonstrated his ability to frame facts and state claims for
relief. See Am. Compl. [#12]. The legal issues presented are not overly complex, novel,
or particularly difficult to state or analyze.
The fact that Plaintiff’s financial situation has made it difficult for him to obtain
representation does not, by itself, warrant the need for volunteer counsel. Although mindful
of the difficulties faced by pro se parties, courts and legislating bodies have made a
distinction between civil and criminal cases regarding the necessity of counsel. See, e.g.,
Mallard, 490 U.S. at 301 (1989) (“Congress did not intend § 1915[(e] to license compulsory
appointments of counsel . . . .”); Custard v. Turner, No. 06-cv-01036-WYD-CBS, 2008 WL
4838564, at *1 (D. Colo. Nov. 6, 2008) (unpublished decision) (noting that the court is
without statutory authority to commit federal funds to “require counsel to represent” an
indigent civil litigant). Although there are extraordinary circumstances where fundamental
due process concerns may demand that a plaintiff be provided with counsel, this Plaintiff’s
particular circumstances do not. Plaintiff chose to bring this civil action voluntarily knowing
the limitations he would face due to his financial means and lack of legal training. To the
extent that Plaintiff feels that he cannot bear the responsibility at this time, he may
voluntarily dismiss his case without prejudice pursuant to Fed. R. Civ. P. 41(a). However,
while the case is pending, it remains Plaintiff’s legal obligation to comply with the Federal
Rules of Civil Procedure, the Local Rules in this District, and all orders of this Court. See
Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Accordingly,
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IT IS HEREBY ORDERED that the Extension of Time Motion [#32] is DENIED
without prejudice.
IT IS FURTHER ORDERED that the Motion to Amend [#33] is DENIED without
prejudice. If Plaintiff, who proceeds in this matter pro se, is seeking leave to file a Second
Amended Complaint, he must file a motion which complies with the federal and local rules,
namely, Fed. R. Civ. P. 15, and which includes the proposed Second Amended Complaint
as a document separate from the motion. The Court will not permit piecemeal adjudication
of Plaintiff’s case, thus Plaintiff must include all claims he seeks to bring and defendants
he intends to name in the proposed Second Amended Complaint.
IT IS FURTHER ORDERED that the Motion for Counsel [#34] is DENIED without
prejudice.
Dated: June 10, 2013

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