Aicher v. New Mexico Department of Corrections, et al

Filing 27

ORDER by Magistrate Judge Stephan M. Vidmar DENYING 21 Plaintiff's Motion for Appointment of Counsel (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC AICHER,
Plaintiff,
v.

No. 18-cv-0474 RB/SMV

NEW MEXICO DEP’T OF CORRS.,
THE GEO GROUP, INC., and
CORIZON HEALTH CARE
Defendants.
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
THIS MATTER is before the Court on Plaintiff’s Motion for Appointment of Counsel
[Doc. 21], filed on June 15, 2018. Plaintiff is incarcerated and proceeding pro se in this 42 U.S.C.
§ 1983 action. He claims that he was severely beaten by another inmate in 2015. [Doc. 1-1]
at 2–6. He blames Defendants for the beating and alleges that they failed to provide adequate
medical treatment. Id. at 10–11. Plaintiff now requests appointment of counsel because he is
indigent, cannot afford to hire a lawyer, and was granted leave to proceed in forma pauperis in
state court, where his case was originally filed. [Doc. 21] at 1. He further argues that his
imprisonment will greatly limit his ability to litigate, including participating in discovery. Id.
at 1. He argues that the issues in this case are complex. Id. at 1–2. He argues that a trial will
involve conflicting testimony and an attorney is needed to help with presentation of evidence and
cross-examinations. Id. at 2. He reports that he has made repeated efforts to find an attorney on
his own but has not been successful. Id.

The problem is that United States District Courts lack the authority to appoint counsel to
represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,
298 (1989); Rachel v. Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016). In certain exceptional
circumstances, a court may request the voluntary assistance of counsel pursuant to 28 U.S.C.
§ 1915(e)(1). In deciding whether to request voluntary assistance of counsel, courts should
consider “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.”
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (internal quotation marks omitted).
Ultimately, the burden is on the plaintiff “to convince the court that there is sufficient merit to his
claim to warrant [a request for voluntary assistance] of counsel.” Hill v. Smithkline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (internal quotation marks omitted).
The Court is not convinced that there is sufficient merit or complexity in Plaintiff’s claims
to warrant requesting the voluntary assistance of counsel. Moreover, thus far, Plaintiff has been
adequately presenting his claims.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion for Appointment of Counsel [Doc. 21] is DENIED at this time;
IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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