Claice v. Colo Doc. CSP.

Filing 46

ORDER denying 37 Motion for Court Appointed Counseland Motions for Protection and denying 43 Motion for Colo. DOC to ProduceRecords at No Cost to the Plaintiff, Records Concerning or That Were a DirectResults [sic] of the Assault by Inmate Mike Anderson and Motion for AppointedCounsel. By Magistrate Judge Kristen L. Mix on 2/28/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01074-MSK-KLM
JOHN A. CLAICE,
Plaintiff,
v.
VANGELDER, CSP Lt., Unit L7, and
NERESON, CSP. CO., Unit CO,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Court Appointed Counsel
and Motions for Protection [#37] and on Plaintiff’s Motion for Colo. DOC to Produce
Records at No Cost to the Plaintiff, Records Concerning or That Were a Direct
Results [sic] of the Assault by Inmate Mike Anderson and Motion for Appointed
Counsel [#43]. In the first Motion [#37], Plaintiff seeks court-appointed counsel as well as
a preliminary injunction order. In the second Motion [#43], Plaintiff again seeks courtappointed counsel as well as the production of documents from Defendants. Defendants
have not filed a Response to any portion of either Motion.
Both Motions request 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
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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.
In accordance with part III.C. of the United States District Court’s Pilot Program to
Implement a Civil Pro Bono Panel, the Court will only seek volunteer counsel for a pro se
plaintiff if consideration of the following factors so warrants: (1) the nature and complexity
of the action; (2) the potential merit of the pro se party’s claims; (3) the demonstrated
inability of the pro se party to retain counsel by other means; and (4) the degree to which
the interests of justice will be served by appointment of counsel, including the benefit the
Court may derive from the assistance of the appointed counsel. See also Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994,
996 (10th Cir. 1991)) (identifying the following factors for consideration by the Court in
determining whether volunteer counsel should be appointed: (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). As part of the
fourth factor, the Court also considers 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
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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. [#6]. The legal issues presented are not overly complex, novel, or
particularly difficult to state or analyze. See id. Further, the Court has determined in the
pending Recommendation [#45] that Plaintiff’s claims lack merit. The fact that Plaintiff’s
financial situation and incarcerated status have 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) (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 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,
IT IS HEREBY ORDERED that Plaintiff’s Motions [#37, #43] are DENIED to the
extent they seek appointment of counsel.
Plaintiff further seeks a preliminary injunction, see [#43] at 3-4, and production of
documents, see [#43] at 1-2. Because the Court has issued a Recommendation [#45] that
Plaintiff’s case be dismissed,
IT IS FURTHER ORDERED that Plaintiff’s Motions [#37, #43] are DENIED as moot
to the extent they seek a preliminary injunction and production of documents.

DATED: February 28, 2014 at Denver, Colorado

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