Millbrook v. Spitz et al

Filing 140

ORDER denying 137 Motion for Appointment of Counsel, by Magistrate Judge Kathleen M. Tafoya on 3/31/2021.(jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 18–cv–01962–RM–KMT
Consolidated with Civil Action No. 18–cv–02667–RM–KMT
KIM MILLBROOK,
Plaintiff,
v.
A.W. SPITZ
LT. MURTON
CORRECTIONAL OFFICER COLLINS
CORRECTIONAL OFFICER COCHRAN, in their individual and official capacities,
UNITED STATES OF AMERICA,
Defendants.

ORDER

Before the court is Plaintiff’s “Motion for Appointment of Counsel.” ([“Motion”], Doc.
No. 137.) No response has been filed to the Motion, and the 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
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 Kim Millbrook,1 an inmate in the custody of the Federal Bureau of
Prisons [“BOP”], brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act [“FTCA”], 28
U.S.C. §§ 2671-2680. ([“Bivens Complaint”], Doc. No. 16, at 3-5; [“FTCA Complaint”],
Millbrook v. USA, No. 1:18-cv-02667-RM-KMT (D. Colo. Dec. 11, 2018), ECF No. 9, at 2-3.)
At all times relevant to this case, Plaintiff was housed at the BOP’s Administrative Maximum
[“ADX”] facility in Florence, Colorado. (See id. generally.) Plaintiff alleges that, on July 18,
2018, he was physically and sexually assaulted by the individual Defendants, all ADX
corrections officers, and that he was retaliated against for reporting the incident. (Bivens Compl.
6-18; FTCA Compl. 4-11.)
Based on these allegations, on August 8, 2018, Plaintiff commenced this lawsuit against
the individual ADX corrections officers, asserting Bivens claims for violations of his rights under
the First and Eighth Amendments. (Bivens Complaint 3-5, 6-18.) Plaintiff thereafter initiated a
separate action against the United States, asserting FTCA claims for negligence, assault, sexual
assault, and failure to prevent or protect. (FTCA Complaint 2-11.) The cases were thereafter
consolidated, on March 14, 2019. (Doc. No. 43.) The claims are neither novel, nor complex,
and Plaintiff has relayed the substance of his claims effectively thus far.
In support of his request for the appointment of counsel, Plaintiff states that he “is unable
to afford” an attorney. (Mot. 1.) Plaintiff argues that his “imprisonment will greatly limit his

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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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ability to litigate,” particularly given that he has “limited knowledge of the law,” and “limited
access to the law library,” due to complications caused by the COVID-19 coronavirus pandemic.
(Id.) He insists that the issues raised by this case “are complex, and will require significant
research and investigation.” (Id.) In addition, Plaintiff reports that “[a] trial in this case will
likely involve conflicting testimony.” (Id. at 2.) Plaintiff is adamant that appointed counsel
“would better enable” him “to present evidence and cross examine witnesses.” (Id.)
Nevertheless, Plaintiff does not specifically address the nature and complexity of the action, the
potential merit of his claims, or the actual efforts he has undertaken to retain an attorney by other
means. 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. 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 “Motion for Appointment of Counsel” (Doc. No. 137) is DENIED.
Dated this 31st day of March, 2021.

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