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Home My WebLink About2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 075 - Minute Order denying Mot Appoint Counsel- 1 - IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 21-cv-02306-RM-KLM ROBERT LAWRENCE PERRY, Plaintiff, v. STATE OF COLORADO, CITY OF FORT COLLINS, CSU BOARD OF GOVERNORS, COLORADO STATE UNIVERSITY, and STEVEN VASCONCELLOS, Judicial Administrator, Defendants. ______________________________________________________________________ MINUTE ORDER ______________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel [#63] (the “Motion”). The Motion requests that the Court appoint counsel to represent Plaintiff. The Court does not have the power to appoint an attorney without his or her consent, Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 310 (1989), nor does the Court have funds available to pay an attorney who agrees to represent an indigent litigant in a civil case. Nevertheless, the Court can seek volunteer counsel to represent a plaintiff if the Court determines in its discretion that it is appropriate to do so. The Clerk of the Court maintains a list of pro se cases for which the Court is seeking volunteer counsel. Placement on this list does not mean that a plaintiff will automatically receive counsel. Rather, placement on the list results in representation being secured for the plaintiff only if an attorney volunteers to represent him. Because of the number of Case 1:21-cv-02306-RM-KLM Document 75 Filed 02/13/23 USDC Colorado Page 1 of 4 - 2 - cases on the list and the shortage of volunteer attorneys, placement on the list frequently does not result in counsel being obtained. In such circumstances, despite placement of his case on the list, a pro se plaintiff remains responsible for litigating his case himself. The Court will only seek volunteer counsel for a pro se plaintiff if consideration of the following factors so warrants: (1) the nature and complexity of the action; (2) the potential merit of the pro se party’s claims; (3) the demonstrated inability of the pro se party to retain counsel by other means; and (4) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel. See also Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)) (identifying the following factors for consideration by the Court in determining whether volunteer counsel should be appointed: (1) the merits of the plaintiff’s claims; (2) the nature of the factual issues raised in the claims; (3) the plaintiff’s ability to present his claims himself; and (4) the complexity of the legal issues raised). As part of the fourth factor, the Court also considers whether there exist any special circumstances such as those in McCarthy v. Weinberg, 753 F.2d 836, 837 (10th Cir. 1985), where the pro se plaintiff was confined to a wheelchair, had poor eyesight, suffered from a speech impediment and memory lapses, and had general difficulty in communications. See Rucks, 57 F.3d at 979. In this case, Plaintiff has demonstrated his ability to state facts and assert claims for relief. See Second Am. Compl. [#50]. The legal issues presented are not overly complex, novel, or particularly difficult to state or analyze. See id. Although the case remains pending, the undersigned has issued two Recommendations [#73, #74] that the Case 1:21-cv-02306-RM-KLM Document 75 Filed 02/13/23 USDC Colorado Page 2 of 4 - 3 - five named Defendants and all claims asserted against them be dismissed from this lawsuit, with prejudice in part and without prejudice in part. Further, the fact that Plaintiff’s financial situation has made it difficult for him to obtain representation does not, by itself, warrant the need for volunteer counsel. Although mindful of the difficulties faced by pro se parties, courts and legislating bodies have made a distinction between civil and criminal cases regarding the necessity of counsel. See, e.g., Mallard, 490 U.S. at 301 (1989) (“Congress did not intend § 1915[(e] to license compulsory appointments of counsel . . . .”); Custard v. Turner, No. 06-cv-01036-WYD-CBS, 2008 WL 4838564, at *1 (D. Colo. Nov. 6, 2008) (noting that the court is without statutory authority to commit federal funds to “require counsel to represent” an indigent civil litigant). Although there are extraordinary circumstances where fundamental due process concerns may demand that a plaintiff be provided with counsel, the Court finds that this Plaintiff’s particular circumstances, at present, do not merit the appointment of counsel in this case. Plaintiff chose to bring this civil action voluntarily knowing the limitations he would face due to his financial means and lack of legal training. To the extent that Plaintiff feels that he cannot bear the responsibility at this time, he may voluntarily dismiss his case without prejudice pursuant to Fed. R. Civ. P. 41(a). However, while the case is pending, it remains Plaintiff’s legal obligation to comply with the Federal Rules of Civil Procedure, the Local Rules in this District, and all orders of this Court. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court wishes to ensure that Plaintiff is aware that he may obtain free legal advice from the Colorado Federal Pro Se Clinic. Advice may consist of explanations of legal rights and procedures, assistance with drafting pleadings and discovery, and Case 1:21-cv-02306-RM-KLM Document 75 Filed 02/13/23 USDC Colorado Page 3 of 4 - 4 - referrals to other resources in appropriate cases. Plaintiff should be aware that clinic staff will not appear in court on behalf of any pro se litigant. Plaintiff can contact the Colorado Federal Pro Se Clinic at 303-380-8786 to make an appointment to speak with a lawyer. Plaintiff may also visit http://www.cobar.org/fpsc for additional information. The Court also directs the pro se litigant's attention to the Federal Limited-Scope Appearance Program, also known as "FLAP". FLAP allows an attorney to appear with a litigant for a specific, non-dispositive Court hearing, such as a scheduling conference, a status conference, or a discovery hearing. However, even if an attorney volunteers through FLAP, the litigant remains pro se and continues to be responsible for all aspects of the litigation. More information and application forms are available at: https://www.cobar.org/For-Members/Young-Lawyers-Division/Federal-Limited-Scope- Appearance-Program. Accordingly, based on the foregoing and the entire record in this case, it is hereby ORDERED that Plaintiff’s Motion [#63] is DENIED. DATED: February 13, 2023 Case 1:21-cv-02306-RM-KLM Document 75 Filed 02/13/23 USDC Colorado Page 4 of 4