Myers v. City of Loveland, Colorado, The et al

Filing 8

ORDER denying 2 Motion to Appoint Counsel and denying 3 Motion for Service. By Magistrate Judge Kristen L. Mix on 9/5/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02317-REB-KLM
BERNARD KENNETH MYERS,
Plaintiff,
v.
THE CITY OF LOVELAND, COLORADO and
THE COLORADO COUNTY OF LARIMER,
Defendants.

ORDER
ENTERED BY KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Plaintiff’s Motion to Request Appointment of
Council [sic] [Docket No. 2; Filed August 30, 2012] (the “Motion for Counsel”) and
Plaintiff’s Motion to Request Service by U.S. Marshall’s [sic] Office [#3; Filed August
30, 2012] (the “Motion for Service”).
A.

Motion for Counsel
The Motion for Counsel requests that the Court appoint counsel to represent

Plaintiff. 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.
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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
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 the ability to frame facts and state claims for
relief. See Complaint [#1]. 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
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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). The Motion for Counsel is therefore
denied.
B.

Motion for Service
In the Motion for Service, Plaintiff asks the Court to direct the U.S. Marshals Service

to serve the defendants in this case. Plaintiff states that he is unable to afford the cost of
private service of process. Plaintiff, however, has paid the $350 filing fee and has not
sought leave to proceed in forma pauperis. Thus, Plaintiff is responsible for any costs
associated with service of process. The Motion for Service is therefore denied.

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IT IS HEREBY ORDERED that the Motion for Counsel [#2] and the Motion for
Service [#3] are DENIED.
DATED: September 5, 2012 at Denver, Colorado.

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