Whitehead v. Marcantel et al

Filing 136

ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL by Magistrate Judge Kirtan Khalsa. Plaintiff's Motions for Appointment of Counsel (Docs. 47, 120, 130) are denied. The Clerk is directed to mail a copy of the Court's "Guide for Pro Se Litigants" to Plaintiff. (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MONTE WHITEHEAD,
Plaintiff,
vs.

Civ. No. 17-275 MV/KK

MANAGEMENT AND TRAINING
CORPORATION et al.,
Defendants.
ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL
THIS MATTER is before the Court on Plaintiff’s Motions for Appointment of Counsel
(Docs. 47, 120, 130), filed on May 30, 2017, October 10, 2019, and January 6, 2020. Having
reviewed the parties’ submissions, the record, and the relevant law, the Court finds that
Plaintiff’s motions are not well taken and should be DENIED.
I. Background
Plaintiff, a pro se prisoner, filed a Complaint for Damages for Violations of Civil and
Constitutional Rights and for Declaratory and Injunctive Relief (“Complaint”) in state court on
November 14, 2016. (Doc. 1-1.) At the time, Plaintiff was housed at the Otero County Prison
Facility (“OCPF”).1

On March 1, 2017, former Defendant Otero County Board of

Commissioners removed the case to this Court. (Doc. 1.) Plaintiff filed his first Motion for
Appointment of Counsel shortly thereafter, on May 30, 2017. (Doc. 47.) The Court does not
appear to have ruled on this motion. Rather, in a Memorandum Opinion and Order dated
September 27, 2017, United States District Judge Robert Junell dismissed Plaintiff’s federal
claims under Federal Rule of Civil Procedure 12(b)(6), denied Plaintiff’s motions to amend his

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Plaintiff was transferred to the Guadalupe County Correctional Facility on April 17, 2017, (Doc. 119 at 44-45), and
to the Penitentiary of New Mexico on January 7, 2020. (Doc. 131 at 1.)

complaint and to supplement the pleadings, declined to exercise supplemental jurisdiction over
his state law claims, and remanded the state law claims to state court. (Doc. 91.) On February
12, 2018, Plaintiff appealed Judge Junell’s decision but did not challenge the remand of his state
law claims. (Doc. 99; Doc. 110-1 at 2.)
In an Order and Judgment entered on April 2, 2019, the Tenth Circuit affirmed in part,
reversed in part, and remanded the case to this Court “for further proceedings consistent with
[its] order and judgment.” (Doc. 110 at 23.) In several respects, the Tenth Circuit affirmed this
Court’s dismissal of Plaintiff’s federal claims. (See generally Doc. 110-1.) However, the Tenth
Circuit vacated this Court’s dismissal of Plaintiff’s claims that “certain defendants violated his
First Amendment rights by preventing him from receiving hardback books, books from nonapproved vendors, information from the internet, and newspaper articles sent by mail,” and
remanded these claims “to the district court for consideration in the first instance.” (Id. at 5, 8.)
The Tenth Circuit also held that this Court improperly denied Plaintiff’s Motion for
Leave to Amend the Complaint (Doc. 23) and Motion to Supplement the Pleadings (Doc. 60).
(Doc. 110-1 at 22-23.) Specifically, the court found that Plaintiff’s retaliatory transfer claim
“may be a proper claim for relief,” noting, “[f]or example, [that] prison officials may violate a
prisoner’s First Amendment rights when they transfer the prisoner because the prisoner exercised
those rights.” (Id. at 22 & n.15.) Accordingly, the Tenth Circuit reversed and remanded the
“denial of [Plaintiff’s] motion to amend the complaint and his motion to supplement the
pleadings to the district court for evaluation consistent with this order and judgment.” (Id. at 2223.)

On remand, United States District Judge Martha Vázquez, to whom the case was

reassigned, granted Plaintiff’s motions to amend and supplement, permitting Plaintiff to “file an

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amended complaint reasserting his First Amendment claims and asserting a First Amendment
retaliatory transfer claim.” (Doc. 112 at 6.)
Plaintiff timely filed an Amended and Supplemental Complaint for Damages of Civil and
Constitutional Rights and for Declaratory and Injunctive Relief (Doc. 119) (“Amended
Complaint”) on October 10, 2019. Plaintiff then proceeded to file a flurry of motions, including
the two most recent Motions for Appointment of Counsel at issue here, as well as two Motions
for Service of Summons and Complaint (Docs. 121, 129), a Motion for Partial Summary
Judgment Against MTC Defendants (Doc. 124), a Motion to Include Exhibit 34 to the Amended
Complaint (Doc. 125), a Motion to Remove Keefe Commissary Network (KCN) as a Defendant
from the Present Lawsuit (Doc. 126), and a Motion to Proceed with Discovery and Forgo Local
Rule 26.4. (Doc. 132.)
II. Applicable Law
Federal district courts lack the authority to coercively appoint counsel to represent
indigent prisoners in cases brought under 42 U.S.C. § 1983. Mallard v. U.S. Dist. Ct., 490 U.S.
296, 300-02 (1989). However, in certain exceptional circumstances, a court may request the
voluntary assistance of counsel in such cases pursuant to 28 U.S.C. § 1915(e)(1). Sweat v.
Rickards, 712 F. App'x 769, 778 (10th Cir. 2017). 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.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). These 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.

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The court’s consideration of a request for counsel “contemplates an examination of the
state of the record at the time the request is made.” McCarthy v. Weinberg, 753 F.2d 836, 838
(10th Cir. 1985). The plaintiff bears the burden of convincing “the court that there is sufficient
merit to his claim to warrant” a judicial request for pro bono counsel. Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). A “colorable claim,” however, is not
itself sufficient to warrant such a request. See Rucks, 57 F.3d at 979 (explaining that “if the
plaintiff has a colorable claim then the district court should consider the nature of the factual
issues raised in the claim and the ability of the plaintiff to investigate the crucial facts”)
(emphases added) (alteration omitted). The court must consider the totality of the circumstances
and determine whether refusing a pro se litigant’s request for counsel at that time would result in
fundamental unfairness to the litigant, impinging on his due process rights. See Hill, 393 F.3d at
1115; McCarthy, 753 F.2d at 838, 839-40.
III. Analysis
With respect to the first Rucks factor, Plaintiff asserts that his remaining claims have
merit, as evidenced by the Tenth Circuit’s Order and Judgment reversing the dismissal of his
First Amendment free speech claims and the denial of his motions to amend and supplement the
pleadings to assert retaliation claims based on his transfer from OCPF to Guadalupe County
Correctional Facility (“GCCF”). (Doc. 120 at 1; Doc. 130 at 1.) Even assuming this to be true,
however, the Court finds that the remaining Rucks factors weigh against a judicial request for pro
bono counsel at this juncture.
The factual issues properly raised in Plaintiff’s Amended Complaint are not especially
complex, concerning several incidents in which Defendants allegedly denied Plaintiff access to
hardback books, print-outs from the Internet, newspaper clippings, and/or materials from non-

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approved vendors while he was incarcerated at OCPF, as well as Defendant Martinez’s alleged
retaliatory transfer of Plaintiff from OCPF to GCCF.2 Moreover, the Court’s review of the
record indicates that Plaintiff has a firm and comprehensive grasp of the facts of the case and
how they give rise to his claims. (See generally Doc. 119.) The legal issues Plaintiff raises are
likewise straightforward; and, in his Amended Complaint and partial summary judgment motion,
Plaintiff demonstrates his knowledge and understanding of the applicable substantive legal
standards.
Plaintiff contends that the factual and legal issues his case presents “have too much
significance to leave in the hands of a layman unskilled in the law,” and that the results of his
suit will affect the way sex offenders at OCPF are treated and the way “all [New Mexico]
prisons” handle “literature.”

(Doc. 47 at 2; Doc. 130 at 2.) Although the Court recognizes that

all constitutional questions are important, it cannot agree that Plaintiff’s pro se claims regarding
prison conditions under 42 U.S.C. § 1983 are more significant than any other such colorable
claims. Plaintiff does not, at this juncture, appear to have raised any groundbreaking legal
issues; and, any impact that his claims may have on non-parties will necessarily be indirect
because he can only seek relief on his own behalf as this is not a class action.
The bulk of Plaintiff’s arguments in his motions to appoint counsel focus on the
remaining Rucks factor, i.e., the litigant’s ability to present his claims pro se. 57 F.3d at 979.
According to Plaintiff, his incarceration hampers his ability to present his claims because: (a) he
does “not have the freedom to openly work on this lawsuit” due to other inmates’ curiosity,
(Doc. 47 at 2); (b) it is difficult for him to gather evidence, particularly from inmates and staff at
OCPF, where he is no longer housed, (id.; Doc. 130 at 1-2); (c) he lacks sufficient storage space

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In his Amended Complaint, Plaintiff also tried to add other claims and parties; however, the Court struck these
portions of the Amended Complaint because Plaintiff failed to obtain Defendants’ written consent or the Court’s
leave to add them. (See Doc. 135.)

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for the evidence he gathers, (Doc. 130 at 2); (d) “interference from prison officials” limits his
ability to litigate, (Doc. 120 at 2); (e) after being transferred, he requires time to adjust before he
can resume work on the case, (id.); and, (f) he needs an attorney to present evidence, crossexamine witnesses, and avoid technical legal errors. (Id.; Doc. 130 at 2.)
Plaintiff describes circumstances common to pro se prisoner plaintiffs, circumstances
which do not, without more, justify a judicial request for the voluntary assistance of counsel.
Moreover, with his advanced degree, professional background, evident intellect, and family
support, Plaintiff is much better equipped than most pro se prisoners to represent himself.
Indeed, Plaintiff has many times proven his ability to pursue this lawsuit competently and
effectively. His success at the Tenth Circuit is one example; his compilation of some 250 pages
of exhibits attached to his Amended Complaint is another.3 Granted, Plaintiff would likely have
an easier time pursuing his lawsuit if an attorney represented him. However, this is true of
virtually any pro se litigant. See, e.g., 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.”).
In light of the foregoing, and in the absence of Plaintiff’s identification of special
circumstances that warrant a judicial request for pro bono counsel at this juncture, the Court
finds that Plaintiff has clearly and repeatedly demonstrated the ability to present his claims pro
se and that the factual and legal issues presently before the Court are not so complex or
momentous that it would be fundamentally unfair to require Plaintiff to proceed without counsel.
Cf. id. (affirming district court’s denial of the plaintiff’s motion to appoint counsel where the
plaintiff “failed to demonstrate the existence of any special circumstances such as those in

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Although Plaintiff did not need to attach these materials to his Amended Complaint, they do show that he has
already been able to gather considerable evidence related to his claims.

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McCarthy v. Weinberg, where the pro se plaintiff was confined to a wheelchair, had poor
eyesight, suffered from a speech impediment and memory lapses, and had general difficulty in
communication”).
Because Plaintiff has no right to appointed counsel in this matter and has not met his
burden of persuading the Court that his claims warrant a judicial request for pro bono counsel,
Plaintiff’s Motions for Appointment of Counsel will be denied. To the extent that Plaintiff
requests assistance in finding an attorney on his own, the Court will direct the Clerk to mail to
Plaintiff a copy of the United States District Court for the District of New Mexico’s “Guide for
Pro Se Litigants,” which lists resources for legal representation.
IT IS THEREFORE ORDERED that Plaintiff’s Motions for Appointment of Counsel
(Docs. 47, 120, 130) are DENIED. The Clerk is directed to mail a copy of the Court’s “Guide
for Pro Se Litigants” to Plaintiff.
IT IS SO ORDERED.
____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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