Kimbal v. Garden et al

Filing 13

MEMORANDUM DECISION and ORDER DENYING MOTIONSdenying 5 Motion for Service of Process (Prisoner); denying 6 Motion to Appoint Counsel. If it later appears that counsel may be needed or of specific help, the Court may ask an attorney to appear pro bono on Plaintiff's behalf. No further motions of this nature are necessary. Signed by Judge Clark Waddoups on 7/23/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
PAUL DONALD KIMBAL,
Plaintiff,
v.

)
)
)
)
)
)

MEMORANDUM DECISION &
ORDER DENYING MOTIONS
Case No. 2:12-CV-1069 CW
District Judge Clark Waddoups

RICHARD GARDEN et al.,

)
)
Defendants.
)
_________________________________________________________________
Plaintiff, Paul Donald Kimbal, has filed a pro se prisoner
civil rights complaint.1

Plaintiff's application to proceed in

forma pauperis has been granted.

Plaintiff now moves for

appointed counsel and service of process.
The Court first considers the motion for appointed counsel.
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
1

See 42 U.S.C.S. § 1983 (2013).

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) (2013); 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).

the claims, the litigant's ability to present his claims, and the
complexity of the legal issues raised by the claims.'"5
Considering the above factors, the Court concludes here that (1)
it is not clear at this point that Plaintiff has asserted a
colorable claim; (2) the issues in this case are not complex; and
(3) Plaintiff is not incapacitated or unable to adequately
function in pursuing this matter.

Thus, the Court denies for now

Plaintiff's motion for appointed counsel.
Next, the Court denies for now Plaintiff's motion for
service of process.

The Court has yet to make a final

determination whether to dismiss Plaintiff's complaint or order
it to be served upon Defendants.6

Plaintiff need do nothing

further to trigger this process.
IT IS HEREBY ORDERED that:
(1) Plaintiff's request for appointed counsel is DENIED7;
however, if it later appears that counsel may be needed or of
specific help, the Court may ask an attorney to appear pro bono
on Plaintiff's behalf.

No further motions of this nature are

necessary.

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 28 U.S.C.S. § 1915A (2013).

7

(See Docket Entry # 6.)

2

(2) Plaintiff's motion for service of process is DENIED8
however, if, upon further review, it appears that this case has
merit and states a claim upon which relief may be granted, the
Court may order service of process.
DATED this 23rd day of July, 2013.
BY THE COURT:

_____________________________
CLARK WADDOUPS
United States District Judge

8

(See Docket Entry # 5.)

3