Brewer (PS) v. City and County of Denver et al

Filing 31

ORDER. Plaintiff's Motion for Appointment if Counsel (Doc. No. 28 ) is DENIED without prejudice, by Magistrate Judge Maritza Dominguez Braswell on 3/6/2025.(angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–03280–NYW–MDB

JEROME SHAWNTELL BREWER,
Plaintiff,
v.
ASAY #S11051, Denver County Sheriff’s Deputy,
Defendant.

ORDER
Before the Court is Plaintiff’s Motion for Appointment of Counsel. ([“Motion”], Doc. No.
28.) After carefully considering the issues, the Court has determined the interests of justice do not
warrant appointment of counsel at this time. For the following reasons, the Motion is DENIED.
PRO SE SUMMARY
The Court is denying your Motion. Though the Court acknowledges it is challenging to
proceed pro se in federal court, the Court has very limited resources available to it, and the
circumstances here do not warrant appointment of counsel at this time. If your case survives
Defendant’s Motion to Dismiss, you can apply for appointment of counsel again at that time. This
is only a high-level summary of the Court’s decision. The complete decision is set forth below.

ANALYSIS
In a civil case, the determination as to whether to appoint counsel 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)). One of those factors is, “the merits of the
litigant’s 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, 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).

Plaintiff initiated this action on December 13, 2023. (Doc. No. 1.) In his operative
complaint, (Doc. No. 15), Plaintiff alleges that, on December 15, 2022, he was pursuing a habeas
corpus action in the United States District Court for the District of Nebraska, Case No. 8:22?cv?
416, and had been ordered to return an application by January 6, 2023, or risk dismissal. (Id. at
4.) According to Plaintiff, Defendant—a Denver County Sheriff’s Deputy—refused to allow
Plaintiff to keep two manila envelopes containing the application and other legal materials. (Id.)
Plaintiff alleges this prevented him from returning the necessary paperwork to the Nebraska
court or maintaining ongoing correspondence, which ultimately led to the dismissal of his habeas
case. (Id.) Based on these facts, Plaintiff brings a First Amendment claim for denial of access to
the courts. (Id.)
Plaintiff moves the Court to appoint him pro bono counsel for five reasons. First, Plaintiff
notes he has been granted in forma pauperis status, and cannot otherwise afford an attorney.
(Doc. No. 28 at 1.) Second, Plaintiff contends his First Amendment claim is “arguably
meritorious.” (Id. at 2.) Third, he believes depositions and other discovery will be necessary,
which he—due to limited resources and legal knowledge—is unable to manage effectively. (Id.
at 3.) Fourth, he asserts the case involves video evidence, administrative procedures, and legal
standards unfamiliar to him. (Id. at 4.) Finally, he argues that without counsel’s assistance in
cross?examining witnesses and presenting evidence, the jury will be deprived of key facts, thus
undermining the fairness of the proceedings. (Id. at 5.)
Plaintiff is eligible for pro bono representation, but the Court finds appointment is not
warranted at this time. First, the Court is not persuaded that the action is so uniquely complex
that Plaintiff cannot move the matter forward on his own. Second, the Court does not have

3

enough information to fully assess the merits of Plaintiff’s claims at this time because the action
is in its early stages with a pending motion to dismiss. (See Doc. No. 24; Toevs v. Reid, 685 F.3d
903, 916 (10th Cir. 2012) (explaining appointment of counsel is appropriate in “extreme case[s]
where the lack of counsel results in fundamental unfairness”).) Further, though the Court agrees
that appointment of counsel will allow Plaintiff to better present his case, this—in and of itself—
is not unique to Plaintiff nor grounds for appointment. Rucks, 57 F.3d at 979 (“While we do not
quarrel with [Plaintiff’s] assertion that having counsel appointed would have assisted him in
presenting his strongest possible case, the same could be said in any case.”).
The Court understands that proceeding pro se in federal court is challenging, but
considering the very limited resources afforded to the Court in providing pro bono counsel in
civil cases, the Court denies the Motion at this time. Plaintiff may file a new motion for the
appointment of counsel at a later date, should the case proceed to a more advanced stage.
CONCLUSION
For these reasons, it is
ORDERED that Plaintiff’s Motion for Appointment if Counsel (Doc. No. 28) is
DENIED without prejudice.
The Clerk of Court is directed to mail a copy of this Order to Plaintiff:
Jerome Shawntell Brewer
#185242
Sterling Correctional Facility (SCF)
P.O. Box 6000
Sterling, CO 80751
Dated this 6th day of March, 2025.

4

BY THE COURT:

Maritza Dominguez Braswell
United States Magistrate Judge

5