Pena v. Salt Lake City et al

Filing 12

ORDER & MEMORANDUM DECISION:denying 8 Motion to Appoint Counsel; granting 9 Motion for Extension of Time; granting 10 Motion for Extension of Time; denying 11 Motion to Appoint Counsel. It is hereby ordered that Plaintiff's motions for an extension of time in which to file an amended complaint are granted. Plaintiff has thirty days from today to file his amended complaint. Signed by Judge David Nuffer on 8/15/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) ORDER & MEMORANDUM DECISION
)
Plaintiff,
) Case No. 2:12-CV-431 DN
)
v.
) District Judge David Nuffer
)
SALT LAKE CITY et al.,
)
)
Defendants.
)
_________________________________________________________________
OSCAR PENA,

Plaintiff, Oscar Pena, filed a pro se prisoner civil rights
complaint.1

Plaintiff now moves for appointed counsel and an

extension of time in which to file an amended complaint.
Plaintiff has no constitutional right to counsel.2

However,

the Court may in its discretion appoint counsel for indigent
inmates.3

"The burden is upon the applicant to convince the

court that there is sufficient merit to his claim to warrant the
appointment of counsel."4
When deciding whether to appoint counsel, the district 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

1

See 42 U.S.C.S. § 1983 (2012).

2

See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah
State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
3

See 28 U.S.C.S. § 1915(e)(1) (2012); Carper, 54 F.3d at 617; Williams
v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
4

McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).

complexity of the legal issues raised by the claims.'"5
Considering the above factors, the Court concludes here that, at
this time, Plaintiff's claims may not be colorable, the issues in
this case are not complex, and Plaintiff is not at this time too
incapacitated or unable to adequately function in pursuing this
matter.

Thus, the Court denies for now Plaintiff's motions for

appointed counsel.
IT IS HEREBY ORDERED that Plaintiff's motions for appointed
counsel are DENIED6; however, if, after the case develops
further, it appears that counsel may be needed or of specific
help, the Court will ask an attorney to appear pro bono on
Plaintiff's behalf.
IT IS FURTHER ORDERED that Plaintiff's motions for an
extension of time in which to file an amended complaint are
GRANTED.7

Plaintiff has thirty days from today to file his

amended complaint.
DATED this 15th day of August, 2012.
BY THE COURT:
S/David Nuffer
______________________________
JUDGE DAVID NUFFER
United States District Court

5

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting
Williams, 926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39.
6

(See Docket Entry #s 8 & 11.)

7

(See Docket Entry #s 9 & 10.)

2