Chesser v. Director Federal Bureau of Prisons

Filing 169

ORDER by Magistrate Judge Nina Y. Wang on 10/30/2017. The Motion for Appointment of Counsel 167 is DENIED. A copy of this Order shall be sent to the following: Zachary A. Chesser #76715-083, FLORENCE ADMAX U.S. PENITENTIARY, Inmate Mail/Parcels, PO BOX 8500, FLORENCE, CO 81226 (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01939-NYW
ZACHARY A. CHESSER,
Plaintiff,
v.
DIRECTOR FEDERAL BUREAU OF PRISONS,
Defendant.

ORDER
Magistrate Judge Nina Y. Wang
This action is proceeding before this Magistrate Judge pursuant to 28 U.S.C. § 636(c),
D.C.COLO.LCivR 72.2(d), and the Order of Reference for all purposes entered by the Honorable
Marcia S. Krieger, Chief Judge, on January 7, 2016. [#37]. Currently pending before the court
is Plaintiff Zachary Chesser’s (“Plaintiff” or “Mr. Chesser”) Fourth Motion for Appointment of
Counsel (“Motion to Appoint Counsel”). [#167, filed October 10, 2017].
The court has discussed the background of this case in detail in previous orders, see e.g.,
[#24; #56; #86], and will discuss it here only as it relates to the pending Motion to Appoint
Counsel. Mr. Chesser filed his first motion to appoint counsel on October 7, 2015. [#9]. The
Honorable Gordon Gallagher denied that motion as premature on November 11, 2015. [#20 at
6]. Mr. Chesser filed his second motion to appoint on June 9, 2016 [#56], which the undersigned
denied on June 24, 2016. [#61]. Mr. Chesser filed his third motion on March 6, 2017, which the
undersigned again denied. See [#94].

In the present Motion to Appoint Counsel, Mr. Chesser requests that the court appoint
him an attorney because he cannot afford to conduct a deposition or to retain an expert, and
cannot access eyewitnesses due to his incarceration. [#167 at 1]. Essentially, Plaintiff seeks to
depose a BOP employee and hire an expert to refute the BOP’s arguments that his placement at
ADX was a response to a legitimate security concern, not because of his religious beliefs. [Id. at
1–2]. In addition, Plaintiff contends that the BOP is considering settlement with similar group
prayer cases, but that Plaintiff cannot participate in those discussions unless he is appointed
counsel because he cannot easily reach counsel in these other cases. [Id. at 3]. Mr. Chesser
continues that he wishes to coordinate discovery in his case and others, and that it may make
more sense to consolidate these matters in the future. [Id.].
A trial court exercises its discretion in determining whether to appoint counsel in a civil
case. 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). The court also considers 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 appointed counsel. See 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. “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.” Id. (citation omitted).

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On review of the case file in this action, the court is not persuaded on the record before it
that the merits and complexity of this case warrant appointment of counsel at this time, or that
counsel is necessary to allow Mr. Chesser to pursue meaningful discovery on his remaining
claims. See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir. 2012) (holding that appoint of counsel is
necessary only in “extreme case where the lack of counsel results in fundamental unfairness.”).
Indeed, Mr. Chesser admits that he has completed the “[m]ost meaningful discovery a pro se
party can do” to this point. [#167 at 1]. And Mr. Chesser has cogently engaged with this court
and the BOP in several discovery related matters. Further, as explained in its earlier Orders, the
court finds Plaintiff sufficiently educated and articulate to conduct this action. See Witmer v.
Grady Cty. Jail, 483 F. App’x 458, 462 (10th Cir. 2012) (affirming the district court’s denial of
appointment of counsel because the plaintiff had the ability to understand and present his claims
pro se).
In addition, there is insufficient information or evidence before this court to convince it
that Mr. Chesser’s claims are sufficiently similar in identity to any other inmate so that he should
be given counsel to coordinate discovery or settlement across disparate cases, or to seek some
type of consolidation. [#167 at 2–3]. Indeed, this action has been proceeding since 2015 in this
court, and discovery is set to close on January 23, 2018. Given the procedural posture of this
matter, the court accordingly cannot conclude that the interests of justice would be served by
appointment of civil counsel at this time.
CONCLUSION
Based on the foregoing, the Motion for Appointment of Counsel [#167] is DENIED.

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DATED: October 30, 2017

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

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