Free Order on Motion to Appoint Counsel - District Court of Colorado - Colorado

Case 1:04-cv-00087-EWN-CBS

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Filed 06/27/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00087-EWN-CBS ROBERT D. GANDY, Plaintiff, v. JOE ORTIZ, Director, GARY WATKINS, Superintendent, TREVOR WILLIAMS, Major, LT. ADELMAN, and DR. KATHERINE CHITTENDEN, Defendants. __________________________________________________________________ ___ ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL __________________________________________________________________ ___ Magistrate Judge Craig B. Shaffer This civil action comes before the court on Gandy's "Motion for the Appointment of Counsel Pursuant to U.S.C. § 1915(e)(1)" (filed June 23, 2005) (doc. # 45). Pursuant to the General Order of Reference dated April 5, 2005 and the memorandum dated June 23, 2005, the Motion was referred to the Magistrate Judge. The court has reviewed the pending motion, the entire case file, and the applicable law and is sufficiently advised in the premises. Indigent civil litigants have no constitutional or statutory right to be represented by a lawyer. Merritt v. Faulkner, 697 F.2d 761, 763 (7th Cir. 1983). Pursuant to 28 U.S.C. § 1915(e)(1), the court " may request an attorney to represent any person 1

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unable to afford counsel."See also Johnson v. Howard, 20 F. Supp. 2d 1128, 1129 (W.D. Mich. 1998) (a court may request counsel to represent an indigent plaintiff in an " exceptional case" However, § 1915(e)(1) does not authorize " ). compulsory assignments of attorneys"or " coercive appointments of counsel."Mallard v. United States District Court for the Southern Dist. of Iowa, 490 U.S. 296, 300-310 (1989). Whether to request counsel is left to the sound discretion of the trial court. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). " [T]he district court has broad discretion to appoint counsel for indigents . . . , and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights."Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (applying 28 U.S.C. § 1915(d), amended and renumbered as § 1915(e)(1)) (internal quotation marks and citation omitted). In deciding whether to request counsel for an indigent civil litigant, the district court should evaluate "the merits of a [litigant' claims, the s] nature and complexity of the factual issues, and the [litigant' ability to investigate the s] facts and present his claims." Hill v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citations omitted). "The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." Hill, 393 F.3d at 1115 (citation omitted). "Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court's decision be overturned." Hill, 393 F.3d at 1115 (citation omitted).

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The court has given careful consideration to Gandy's request for appointed counsel and to all of the appropriate factors. As a pro se litigant, Gandy is afforded a liberal construction of his papers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Gandy has thus far adequately expressed himself and presented his claims unaided by counsel, having pursued and prevailed in part on appeal of the dismissal of his Complaint. See Gandy v. Ortiz, 122 Fed. Appx. 421 (10th Cir. (Colo.) Feb. 10, 2005). After the Tenth Circuit's ruling, a single claim remains in this lawsuit for retaliation based on Gandy's exercise of his First Amendment rights. See id., at 423. Upon initial review of the single remaining claim, the court does not find sufficient reason to warrant the appointment of counsel. The court is within its discretion in declining to request counsel to represent Gandy. Accordingly, IT IS ORDERED that Gandy's "Motion for the Appointment of Counsel Pursuant to U.S.C. § 1915(e)(1)" (filed June 23, 2005) (doc. # 45) is DENIED.

DATED at Denver, Colorado, this 24 day of June, 2005.

BY THE COURT:

s/Craig B. Shaffer Craig B. Shaffer United States Magistrate Judge 3

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