Millbrook v. Matevousian
ORDER denying 44 Request 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. 19–cv–02395–RM–KMT
DOCTOR JUSTIN STERETT,
CORRECTIONAL OFFICER ROSS,
CORRECTIONAL OFFICER MORRIS,
CORRECTIONAL OFFICER LOVELACE,
CASE MANAGER ROBINSON,
CASE MANAGER OSLAND,
UNIT MANAGER PORCO,
DOCTOR OBA, and
PHYSICIAN’S ASSISTANT SEROSKI, in their individual and official capacities,
Before the court is Plaintiff’s “Request for Appointment of Counsel.” ([“Motion”], Doc.
No. 44.) 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).
Pro se Plaintiff Kim Millbrook,1 an inmate in the custody of the Federal Bureau of
Prisons [“BOP”] at the Administrative Maximum [“ADX”] facility in Florence, Colorado, brings
this action, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), asserting violations of his civil rights by thirteen individual Defendants, all
of whom are ADX employees. ([“Complaint”], Doc. No. 7.) Plaintiff alleges that, in 2019,
while confined at ADX, Defendants systematically denied his constitutional right of access to the
courts, unlawfully retaliated against him for filing lawsuits against prison officials, used
excessive force against him, and provided him with constitutionally inadequate medical care.
(Id. at 11-56.) The claims are neither novel, nor complex, and Plaintiff has relayed the substance
of his claims effectively thus far. In his Complaint, Plaintiff requests both equitable and
monetary relief. (Id. at 58.)
In support of his request for the appointment of counsel, Plaintiff states that he is
“proceeding as an indigent person,” who “believe[s] that the legal issues are complicated and
need to be investigated thoroughly by an experienced attorney.” (Mot. 1.) Plaintiff further
reports that he is currently “not able to get to the law library or conduct discovery to prepare for
the trial,” due to complications caused by the COVID-19 coronavirus pandemic. (Id.)
Nevertheless, Plaintiff does not specifically address the nature and complexity of the action, the
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”).
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
Accordingly, it is
ORDERED that the “Request for Appointment of Counsel” (Doc. No. 44) is DENIED.
Dated this 31st day of March, 2021.
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