Theisen et al v. Fausett et al

Filing 11

MEMORANDUM DECISION AND ORDER denying 4 Motion for Service of Process. ; denying 5 Motion to Appoint Counsel ; denying 9 Motion for Service of Process. ; denying 10 Motion to Appoint Counsel. Signed by Magistrate Judge Paul M. Warner on 9/27/12. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

RICHARD THEISEN, et al.

MEMORANDUM DECISION
AND ORDER

Plaintiffs,
Case No. 2:12cv173

vs.
ASHTON FAUSETT, et al.
Defendants.

District Judge Dale A. Kimball
Magistrate Judge Paul M. Warner

This matter was referred to Magistrate Judge Paul M. Warner by District Judge Dale A.
Kimball pursuant to 28 U.S.C. § 636(b)(1)(B).1 Before the court are Richard Theisen and
Tiffany Theisen’s (collectively, “Plaintiffs”) (1) motions for service of process2 and (2) motions
for appointment of counsel.3 The court previously granted Plaintiffs’ application to proceed in
forma pauperis under 28 U.S.C. § 1915 (“in forma pauperis statute”).4
First, after considering Plaintiffs’ motions for service of process, the court denies them at
this time. The court first must fully screen Plaintiffs’ complaint (and proposed amended
complaint) under the in forma pauperis statute to determine whether “the action . . . (i) is

1

See docket no. 6.

2

See docket nos. 4 and 9.

3

See docket nos. 5 and 10.

4

See docket no. 2.

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). When the court screens Plaintiffs’ case in due course, it will determine
whether to order service of process. See 28 U.S.C. § 1915(d). There is nothing Plaintiffs need
do to trigger the screening process.
Second, the court addresses Plaintiffs’ motions for appointment of counsel. While
appointment of counsel for indigent litigants is permitted under the in forma pauperis statute, see
28 U.S.C. § 1915(e)(1), a plaintiff in a civil case has no statutory or constitutional right to the
appointment of counsel. See, e.g., Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). When
deciding whether to appoint counsel, a court should consider a variety of factors, “including ‘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) (quoting Williams, 926 F.2d at 996).
Considering the above factors in relation to this case, the court concludes that (1) it is not
yet clear whether Plaintiffs have asserted colorable claims, (2) the issues involved in this matter
are not particularly complex, and (3) Plaintiffs are able to adequately present their claims.
Therefore, the court DENIES Plaintiffs’ motions for appointment of counsel at this time.
However, as the matter develops, if it appears that counsel may be necessary or of special help,

2

the court may choose to exercise its discretion and appoint an attorney to represent Plaintiffs pro
bono.
IT IS SO ORDERED.
DATED this 27th day of September, 2012.
BY THE COURT:

Paul M. Warner
United States Magistrate Judge

3