Thompson v. Lengerich et al

Filing 104

ORDER by Magistrate Judge Kathleen M. Tafoya on 1 October 2021. ORDERED that the "Plaintiff's Motion for the Appointment of Qualified CounselPursuant to D.C.COLO.LCivR 7.1(b)(1) & D.C.COLO.LAttyR 15(e)(1)(b)" (Doc. No. 99 ) isDENIED.(csarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 18–cv–00588–RM–KMT
LARRY ALLEN THOMPSON,
Plaintiff,
v.
JASON LENGRICH, WARDEN, BUENA VISTA CORR. FAC.,
JENNIFER HANSEN, BVCF SECURITY SVC. CAPTAIN,
WILLIAM CATTELL, BVCF EAST UNIT SUPERVISOR, and
THE COLORADO DEPARTMENT OF CORRECTIONS (CDOC),
Defendants.

ORDER

Before the court is “Plaintiff’s Motion for the Appointment of Qualified Counsel
Pursuant to D.C.COLO.LCivR 7.1(b)(1) & D.C.COLO.LAttyR 15(e)(1)(b).”1 ([“Motion”], Doc.
No. 99.) No response has been filed to the Motion, and thew time to do so has lapsed. After
carefully considering the Motion, as well as related briefing, the court has determined that the
interests of justice do not warrant the appointment of civil counsel.
The determination as to whether to appoint counsel in a civil case is left to the sound
discretion of the district court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). The

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Thompson simultaneously filed this identical motion in another pending lawsuit. See Plaintiff’s
Motion for the Appointment of Qualified Counsel Pursuant to D.C.COLO.LCivR 7.1(b)(1) &
D.C.COLO.LAttyR 15(e)(1)(b), Thompson v. Williams, No. 1:21-cv-00602-RM-KMT (D. Colo.
Jun. 1, 2021), ECF No. 19.

court must “give careful consideration to all the circumstances with particular emphasis upon
certain factors that are highly relevant to a request for counsel.” Id. (quoting McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)). Those factors include: “the merits of the
litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s ability to
present his claims, and the complexity of the legal issues raised by the claims.” Id. (quoting
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)). “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 v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (quoting
McCarthy, 753 F.2d at 838). “Only in those extreme cases where the lack of counsel results in
fundamental unfairness will the district court’s decision be overturned.” Id. (quoting McCarthy,
753 F.2d at 839).
Pursuant to the Local Rules of Practice of the United States District Court for the District
of Colorado-Attorney, the following unrepresented parties are eligible for the appointment of pro
bono counsel: (1) a party who has been granted leave to proceed in forma pauperis under 28
U.S.C. § 1915; (2) an unrepresented prisoner; and (3) a non-prisoner, unrepresented party who
demonstrates limited financial means. D.C.COLO.LAttyR 15(e). In addition to eligibility, the
court applies the following factors and considerations to evaluate a motion for the appointment
of counsel in a civil case: (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 unrepresented party to retain an
attorney by other means; and (4) the degree to which the interests of justice will be served by the
appointment of counsel, including the benefit the court may derive from the assistance of the
appointed counsel. D.C.COLO.LAttyR 15(f)(1)(B).

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Pro se Plaintiff Larry Allen Thompson,2 an inmate in the Colorado Department of
Corrections [“CDOC”], brings this action under 42 U.S.C. § 1983, alleging that he was subjected
to unconstitutional conditions of confinement while incarcerated at the CDOC’s Buena Vista
Correctional Facility [“BVCF”]. ([“Amended Complaint”], Doc. No. 82.) He alleges,
specifically, that BVCF is overcrowded and understaffed, and that these conditions, along with
the prison’s shower conditions and policies, violated his rights under the Fourth, Eighth, and
Fourteenth Amendments. (Id. at 5-21.) Plaintiff lodges his claims against the CDOC, as well as
three individual BVCF prison guards, in their official and personal capacities. (Id. at 1-4.) He
seeks injunctive relief, as well as compensatory and punitive damages. (Id. at 24.)
After an initial screening under 28 U.S.C. § 1915A, all of Plaintiff’s claims set forth in
his initial pleading were dismissed, as legally frivolous. (Doc. No. 13.) On appeal, the Tenth
Circuit reversed and remanded the dismissal of the following causes of action: (1) the Eighth
Amendment claims, which were premised on BVCF’s shower conditions and policy, against
Defendants in their individual capacities; (2) the Eighth Amendment claim, which was premised
on overcrowding and understaffing at BVCF, against Defendant Lengerich in his individual
capacity; (3) the Fourteenth Amendment bodily privacy claims against Defendants in their
individual capacities; and (4) the Fourteenth Amendment equal protection claims against
Defendants in their individual capacities. (Doc. No. 26 at 17.) Plaintiff thereafter filed an

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Mindful of Plaintiff’s pro se status, the court “review[s] his pleadings and other papers liberally
and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United
States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner, 404 U.S.
519, 520–21 (1972) (holding the allegations of a pro se complaint “to less stringent standards than
formal pleadings drafted by lawyers”).
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Amended Complaint, naming the CDOC as a Defendant, as well. (Am. Compl. 4.) The claims
are neither novel, nor complex, and as evidenced by his successful appeal, Plaintiff has relayed
the substance of his claims effectively thus far.
In support of his present request for counsel, Plaintiff states that he “lacks the monetary
resources with which to retain competent representation,” and he directs the court to evidence of
his “several attempts to secure the pro bono services of a qualified attorney.” (Mot. 3.) Plaintiff
states that this case involves “Medical and Mental Health issues,” which he argues “will more
likely than not require Expert Witness testimony.” (Id.) He argues that he “lacks ligitative [sic]
experience to competently conduct the basic, yet necessary processes such as Discovery;
Depositions; Interrogatories; and the serving of subpoenas,” and he claims that he lacks the
“wherewithal and/or resources with which to obtain expert witnesses.” (Id. at 3-4.) Plaintiff
laments that he has “has no education and/or training in the field and practice of law,” and thus,
is “outnumbered and overmatched” as against Defendants, who “are represented by highly
educated, trained, and experienced litigators from the State’s Attorney’s General office.” (Id. at
4.) Thompson is adamant that, “unlike many of the jailhouse/prison pro se litigants who
habitually disrespect and waste[] this Court’s time & resources with petty and/or frivolous
lawsuits,” his case involves “Relevant, Non-Frivolous & Meritorious Constitutional claims and
issues,” which he argues “deserve to be competently presented to the Court” by an appointed
attorney. (Id. at 6.) Plaintiff argues that, given his “layman’s understanding and sixth grade
education,” he is “not qualified to represent himself in these matters.” (Id.) However, based on
Plaintiff’s relative success thus far in proceeding with his case, as well as the clear and concise
manner with which he has articulated his various points of contention throughout this litigation,

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the court finds these arguments to be unavailing. Further, while Plaintiff does attempt to address
each of the aforementioned factors set forth in Local Attorney Rule 15(f)(1)(B), the court
nevertheless does not find the facts and circumstances to warrant the appointment of counsel
here. See D.C.COLO.LAttyR 15(f)(1)(B).
Although Plaintiff has expressed concern about his ability to litigate this case while
incarcerated, his inmate status alone does not entitle him to appointed counsel. See Williams v.
Ezell, 534 F. App’x 699, 703 (10th Cir. 2013); Griffin v. Ortiz, 286 F. App’x 538, 541 (10th Cir.
2008). In addition, the court does not see any benefit that it may derive from the assistance of
appointed counsel. Moreover, discovery in this matter remains stayed, and Plaintiff has already
filed a response to the Defendants’ pending motion to dismiss. (See Doc. Nos. 62, 97.) As such,
the parties’ outstanding obligations are limited. On balance, therefore, the court cannot conclude
that the interests of justices would be served by the appointment of pro bono counsel.
Accordingly, it is
ORDERED that the “Plaintiff’s Motion for the Appointment of Qualified Counsel
Pursuant to D.C.COLO.LCivR 7.1(b)(1) & D.C.COLO.LAttyR 15(e)(1)(b)” (Doc. No. 99) is
DENIED.
Dated this 1st day of October, 2021.

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