Custard v. Allred et al

Filing 101

ORDER denying 88 Motion to Appoint Counsel as premature; denying 89 Motion to Amend/Correct/Modify for failure to attach proposed amended complaint or otherwise establish good cause; denying 98 Motion for Ruling, by Magistrate Judge Craig B. Shaffer on 9/17/14. (cbslc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02296-REB-CBS
BOB CUSTARD,
Plaintiff,
v.
DAVID ALLRED,
YVETTE BROUILLET-FETTERHOFF,
BUREAU OF PRISONS,
CHAVEZ,
CORDOVA,
ENCARANANZE,
FIEF,
ANDREW FENLON,
B. KASDON,
KOCH-COULTER,
PATRICIA RANGEL,
PAUL ZOHN, and
ZONNO,
Defendants.
ORDER
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on Mr. Custard’s “Motion to Appoint
Counsel” (doc. #88)1 and “Renewed Motion for Leave to File a Second Amended
Complaint” (doc. #89) 2. Also before the court is Plaintiff’s “Motion for Expedited Ruling
on Long Pending Motions.” (Doc. #98).

Pursuant to the Order Referring Case dated

January 2, 2014 (doc. # 31) and the memorandums dated May 29, 2014 (doc. # 90) and
September 9, 2014 (doc. #99), respectively, these matters were referred to the
Magistrate Judge. The court has reviewed the matters, the entire case file, and the
applicable law and is sufficiently advised in the premises.

1

Plaintiff previously requested on January 8, 2014, that the court appoint counsel for him (doc. #40). Plaintiff
subsequently withdrew this request (doc. #56), which this court acknowledged in an Order dated March 11, 2014
(doc. #59).
2
Plaintiff previously requested on January 3, 2014, leave to file a Second Amended Complaint (doc. #32). Plaintiff
subsequently moved to withdraw his request (doc. #60), which this court granted on March 17, 2014 (doc. #65).
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Whether to request counsel is left to the sound discretion of the trial court. Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In deciding whether to request counsel for a
civil litigant, the district court should evaluate "the merits of a [litigant’s] claims, the nature and
complexity of the factual issues, and the [litigant’s] ability to investigate the facts and present his
claims." Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations
omitted). See also Part III.C. of the U.S. District Court's Pilot Program to Implement A Civil Pro
Bono Panel, www.cod.uscourts.gov/Court Operations/RulesProcedures/PilotProjects.aspx
(factors and considerations include: 1) the nature and complexity of the action; 2) the potential
merit of the pro se party's claims; and 3) 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). "The burden is on the applicant to convince the court that
there is sufficient merit to his claim to warrant the appointment of counsel." Hill, 393 F.3d at
1115 (citation omitted). "Only in those extreme cases where the lack of counsel results in
fundamental unfairness will the district court's decision be overturned." Hill, 393 F.3d at 1115
(citation omitted).
The court has considered Mr. Custard’s request for appointed counsel and the
appropriate factors. As a pro se litigant, Mr. Custard is afforded a liberal construction of his
papers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Mr. Custard requests the appointment
of counsel on the basis that his lack of legal experience prevents him from adequately arguing
the factual and legal complexities of the case and his various physical impairments and other
disabilities prevent him from adequately prosecuting his case. Contrary to Mr. Custard’s
characterization, the legal issues and the facts presented are not particularly complex.
Furthermore, Plaintiff has filed numerous motions in this action and responded to Defendants’
Motion to Dismiss (see doc. #87) despite his disabilities. At this time, it is not clear that the

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merits of Mr. Custard’s claims are sufficient for the court to request counsel to volunteer to
represent him.
Mr. Custard also requests leave to file a Second Amended Complaint on the basis that
he requires more than thirty pages to support his six claims.3 Magistrate Judge Boland limited
Plaintiff to thirty pages in a minute order issued September 11, 2013 (doc. #7), to which Plaintiff
objected (doc. #8). District Judge Babcock overruled Plaintiff’s objection and upheld the page
limitation. (Doc. #9). Plaintiff has provided no reason to reconsider the court’s previous rulings.
Moreover, Plaintiff’s Motion to Amend fails to describe his proposed amendments and he failed
to attach a draft of the amended complaint to his Motion. Defendants oppose Plaintiff’s Motion
to Amend and argue that Plaintiff has not established good cause for filing a complaint that
exceeds thirty pages. This court agrees. If Plaintiff wishes to renew his request to amend, he
must attach his proposed Second Amended Complaint as a separate document to his motion to
amend so that the court may discern whether amendment is permissible. See Lambertsen v.
Utah Dept. of Corrections, 79 F.3d 1024, 1029-30 (10th Cir. 1996) (“As the district court was not
provided with a copy of the proposed amended complaint, it would have been impossible for the
court to determine its viability.”).
Finally, Plaintiff requests “Expedited Rulings On Long Pending Fed. R. Civ. P. 12
Pleadings and All Other Attendant and Pending Motions.” This court is aware that Defendants’
Motion to Dismiss and Plaintiff’s related Motion for a Hearing are pending and have been
referred to the undersigned, and intends to address these motions as early as is practicable in
light of the other cases pending on this court’s docket. Accordingly, it is
ORDERED that Mr. Custard’s “Motion to Appoint Counsel” (doc. #88) is DENIED without

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Plaintiff’s original Complaint listed eight claims for relief. (Doc. #1). Plaintiff is subject to filing restrictions under
28 U.S.C. § 1915(g), and the court determined that he failed to state specific, credible allegations of imminent
danger of serious physical harm in claims six and seven. (Doc. #24). The court thereafter dismissed those two
claims following Plaintiff’s failure to pay the $400 filing fee. Id.
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prejudice. It is
FURTHER ORDERED that Mr. Custard’s “Motion for Leave to File a Second Amended
Complaint” (doc. #89) is DENIED without prejudice. It is
FURTHER ORDERED that Mr. Custard’s “Motion for Expedited Ruling on Long Pending
Motions” (doc. #98) is DENIED.
DATED at Denver, Colorado, this 17th day of September, 2014.

BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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