Meek v. Crews, et al

Filing 81

ORDER denying by Magistrate Judge Kristen L. Mix on 5/29/14. IT IS HEREBY ORDERED that the Motion to Appoint Counsel [#62] is DENIED. IT IS FURTHER ORDERED that the Motion for Extension of Time-90 Days [#70] is DENIED as moot. IT IS FURTHER ORDERED that the Motion to Order Service of Process [#71] is DENIED. (lgale)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01064-MSK-KLM
TIMOTHY MEEKS,
Plaintiff,
v.
TINA SAMPER, Nurse, in her official and individual capacities,
RENEE HAMMEL, Nurse, in her official and individual capacities,
SARA JURGENS, Denver Health Doctor, in her official and individual capacities, and
JAIL OFFICIALS, John Does, in their official and individual capacities,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Appoint Counsel [#62], on
Plaintiff’s Motion for Extension of Time—90 Days [#70], and on Plaintiff’s Motion to
Order Service of Process [#71].
Regarding the Motion to Appoint Counsel [#62], the Court has already once denied
Plaintiff’s request for the appointment of counsel [#24]; thus the Court construes the
present request as a motion to reconsider. A motion for reconsideration “is an extreme
remedy to be granted in rare circumstances.” Brumark Corp. v. Samson Res. Corp., 57
F.3d 941, 944 (10th Cir. 1995). It is well-established in the Tenth Circuit that grounds for
a motion to reconsider are limited to the following: “(1) an intervening change in the
controlling law; (2) new evidence previously unavailable; and (3) the need to correct clear
error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012
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(10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore, a motion to reconsider is
“appropriate [only] where the court has misapprehended the facts, a party's position, or the
controlling law.” Id. Plaintiff does not argue that there has been an intervening change in
the controlling law or that the Court should consider new, previously-unavailable evidence.
Rather, he appears to argue that there is a need to correct clear error and prevent manifest
injustice. However, Plaintiff provides no valid reason as to why the Court should reconsider
its prior Order denying appointment of counsel. Although he describes in more detail the
mental illnesses to which he previously alluded [#18], Plaintiff has already demonstrated
his ability to litigate this case [#24]. 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) (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, lack of legal training, and incarcerated status. To the extent that Plaintiff feels that
he cannot bear the responsibility of pursuing his case 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.
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Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Accordingly, based on the foregoing and the
entire record in this case, Plaintiff’s Motion to Appoint Counsel [#62] is denied.
Regarding the Motion for Extension of Time—90 Days [#70], Plaintiff seeks a 90-day
extension of time in which to respond to Defendant Sara Jurgens’ Motion to Dismiss [#69].
Plaintiff has since filed a Response [#77] to the Motion to Dismiss [#69], which was timely
filed within the period allowed by D.C.COLO.LCivR 7.1(d). Accordingly, the Motion for
Extension of Time—90 Days [#70] is denied as moot.
Regarding the Motion to Order Service of Process [#71], Plaintiff asks the Court to
serve Defendants Tina Samper and Renee Hammel at the Van Cise-Simonet Detention
Center, 490 W. Colfax, Denver, CO 80204. However, the United States Marshal has
recently attempted to serve them both at this address, as previously requested by Plaintiff
[#56], and on March 12, 2014, the Marshal was informed that the “[s]ubject[s] [are] no
longer employed at this location. Current whereabouts are unknown.” [#64, #65]. Although
Plaintiff asserts that he has seen these Defendants “performing their job duties” and that
he believes they “are avoiding court procedures,” these statements are insufficient bases
on which the Court can order the United States Marshal to attempt to serve the same
Defendants at the same location at which service was attempted within the last three
months. Accordingly, the Motion to Order Service of Process [#71] is denied.
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion to Appoint Counsel [#62] is DENIED.
IT IS FURTHER ORDERED that the Motion for Extension of Time—90 Days [#70]
is DENIED as moot.

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IT IS FURTHER ORDERED that the Motion to Order Service of Process [#71] is
DENIED.

Dated: May 29, 2014

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