Ratheal v. McCarthy et al

Filing 17

MEMORANDUM DECISION AND ORDER denying 9 Motion to Appoint Counsel without prejudice. Mr. Ratheal may file a new motion to appoint counsel that includes a completed copy of the attached Application to Proceed in District Court Without Preparing Fees or Costs. Signed by Magistrate Judge Evelyn J. Furse on 9/29/2017. (eat)

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

RODNEY S. RATHEAL,
Plaintiff,

ORDER DENYING
MOTION TO APPOINT
COUNSEL (ECF NO. 9)

LINDSAY McCARTHY, SEC; TOM
HARVEY, THE SALT LAKE TRIBUNE,

Case No. 2:17-cv-00997

vs.

Defendants.

Judge Dale A. Kimball
Magistrate Judge Evelyn J. Furse

Before the Court is Plaintiff Rodney S. Ratheal’s Motion to Appoint Counsel filed
on September 22, 2017. (ECF No. 9.) Mr. Ratheal has appeared pro se in this case,
but has not filed an application to proceed in forma pauperis.
While defendants in criminal actions have a constitutional right to representation
by an attorney, U.S. Const. amend. VI, Fed. R. Crim. P. 44, there is “no constitutional
right to appointed counsel in a civil case.” Durre v. Dempsey, 869 F.2d 543, 547 (10th
Cir. 1989). Indigent parties in civil actions who cannot obtain counsel may apply for the
appointment of counsel under 28 U.S.C. § 1915(e)(1), which allows a court to “request”
an attorney to represent an indigent party. A court has discretion under §1915(e)(1) to
appoint counsel or not. Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994). The
applicant has the burden to convince the court that his or her claim has enough merit to
justify the court’s appointing counsel. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th
Cir. 1985). Moreover, a plaintiff must provide evidence that he cannot afford counsel
before the Court will appoint counsel on his behalf. See 28 U.S.C. § 1915(e)(1).

When deciding whether to appoint counsel, the Court considers 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) (quotations and citations omitted).
Mr. Ratheal asks the Court to appoint counsel, but states no reason for the
request. Furthermore, he fails to provide a declaration demonstrating an inability to
afford counsel.
For the reasons stated above, the Court DENIES Mr. Ratheal’s Motion to Appoint
Counsel without prejudice. Mr. Ratheal may file a new motion to appoint counsel that
includes a completed copy of the attached Application to Proceed in District Court
Without Preparing Fees or Costs.
DATED this 29th day of September, 2017.
BY THE COURT:

____________________________
EVELYN J. FURSE
United States Magistrate Judge

2

AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)

UNITED STATES DISTRICT COURT
for the
__________ District of __________
)
)
)
)
)

Plaintiff/Petitioner
v.
Defendant/Respondent

Civil Action No.

APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS
(Short Form)
I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and
that I am entitled to the relief requested.
In support of this application, I answer the following questions under penalty of perjury:
1. If incarcerated. I am being held at:
.
If employed there, or have an account in the institution, I have attached to this document a statement certified by the
appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any
institutional account in my name. I am also submitting a similar statement from any other institution where I was
incarcerated during the last six months.
2. If not incarcerated. If I am employed, my employer’s name and address are:

My gross pay or wages are: $
(specify pay period)

, and my take-home pay or wages are: $

per

.

3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply):
(a) Business, profession, or other self-employment
(b) Rent payments, interest, or dividends
(c) Pension, annuity, or life insurance payments
(d) Disability, or worker’s compensation payments
(e) Gifts, or inheritances
(f) Any other sources

Yes
Yes
Yes
Yes
Yes
Yes

No
No
No
No
No
No

If you answered “Yes” to any question above, describe below or on separate pages each source of money and
state the amount that you received and what you expect to receive in the future.

AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)

4. Amount of money that I have in cash or in a checking or savings account: $

.

5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or
thing of value that I own, including any item of value held in someone else’s name (describe the property and its approximate
value):

6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide
the amount of the monthly expense):

7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship
with each person, and how much I contribute to their support:

8. Any debts or financial obligations (describe the amounts owed and to whom they are payable):

Declaration: I declare under penalty of perjury that the above information is true and understand that a false
statement may result in a dismissal of my claims.

Date:
Applicant’s signature

Printed name