Free Order on Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:01-cv-02299-PSF-BNB

Document 239

Filed 10/17/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa Civil Action No. 01-cv-02299-PSF-BNB F. DAVID SLUSHER Plaintiff, v. JOHN W. SUTHERS, JOSEPH T. McGARRY, DONALD R. LAWSON, FRANK E. RUYBALID, EDD C. GILLESPIE, JUDY JO BULLARD, TEDDY LAMAR LAURENCE, PHYLLIS P. GRISWOULD, MR. DELAYNE TORNOWSKI, JIM DAY, TAMI WILLIAMS, RICHARD E. HOWARD, and TREVOR WILLIAMS, Defendants.

ORDER ON PLAINTIFF' APPEALS FROM ORDERS OF MAGISTRATE JUDGE S

Plaintiff Slusher appeals from two Orders of the Magistrate Judge, one entered on May 25, 2005 from which plaintiff appealed on June 3, 2005 (Dkt. # 213), and one entered September 23, 2005 from which plaintiff appealed on October 3, 2005 (Dkt. # 235). In each of the orders, the Magistrate Judge denied plaintiff' motions for s appointment of counsel (Dkt. ## 205, 218). Plaintiff requests this Court to overturn the Orders of the Magistrate Judge and order the appointment of counsel.

Case 1:01-cv-02299-PSF-BNB

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In his Order of May 25, 2005, the Magistrate Judge noted that the reason plaintiff sought appointment of counsel was primarily because his access to the courts was being restricted by certain practices at the Fremont Correctional Facility, but that those practices had been discontinued and therefore no longer supported plaintiff' s request for counsel. In his objection to this Court filed on June 3, 2005, plaintiff asserted that the restrictions on his access to the prison mails was continuing, contrary to the finding made by the Magistrate Judge (Dkt. # 213 at 4). In plaintiff' renewed motion for appointment filed July 22, 2005 (Dkt. # 218), he s asserts additional restrictions have been placed upon him limiting his access to the Court and to defendants' counsel. Treating this motion as a claim of interference with plaintiff' access to the courts, the Magistrate Judge set a hearing for August 15, 2005 s to address plaintiff' assertions that his access to the court and to counsel was being s restricted. See Order dated July 26, 2005 (Dkt. # 222). The Court conducted the hearing as scheduled, received a written submission from defendants, made findings on the record, and on August 15, 2005 entered an order denying plaintiff' motion s based on an alleged interference by defendants (Dkt. ## 226, 228). On September 23, 2005, the Magistrate Judge entered a further order expressly denying plaintiff' request s for appointment of counsel, stating that to the extent the motion relied on arguments regarding interference with plaintiff' access to the courts and to defendants' s counsel, they had already been addressed and resolved at the hearing (Dkt. # 229). In his most current objection to this Court, filed October 3, 2005 (Dkt. # 235), plaintiff concedes that as a result of his filing the " Notice of Interference"defendants 2

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have " discontinued most of their refusal to mail his pleadings to the court and to the defendants." Id. at 2. Plaintiff asserts that he nonetheless needs counsel for the other reasons set forth in his June 3, 2005 objection to this Court. Id. Those reasons appear to include plaintiff' medical condition, which he claims s impedes his ability to write. The Court finds this reason unpersuasive, even if it were grounds for appointment of counsel, given plaintiff' prolific filings in this case and in s at least one other case plaintiff has pending before this Court. Plaintiff also states that he has been denied access to taking depositions because he is a prison inmate. However, the court notes that at the scheduling conference held before the Magistrate Judge on May 5, 2005 a discovery schedule was established providing for the completion of discovery by September 30, 2005. There is no restriction in the order on plaintiff' right to notice depositions. Although the record s reflects that defendants moved on July 15, 2005 (Dkt. # 214) to take the deposition of plaintiff (to which he objected), the Court finds no indication that plaintiff has been denied the opportunity to take depositions of defendants or any witnesses at or since the May 5, 2005 scheduling conference, notwithstanding his protestations to the contrary. See Response to Defendant' Motion for Leave to Depose Plaintiff (Dkt. s # 217). Accordingly, plaintiff' assertion that he is impeded in his opportunity to take s depositions is not supported by the record. In any event, now that the discovery period has expired, such a claimed justification for appointment of counsel is moot. Finally, plaintiff also asserted that the prison law library is inadequate. This inadequacy apparently arises from the limited amount of materials plaintiff is allowed 3

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to bring into the prison law library, which he describes a the " 2-inch restriction."See Objection of June 3, 2005 at 5-6; Plaintiff' Renewed Motion for Appointment of s Counsel filed June 28, 2004 at 3. This " restriction"plaintiff admits is one of his own doing, because it arises from the fact that plaintiff has four separate cases pending in this Court and the Colorado Court of Appeals. Thus, he must divide his time and transported materials between all four cases. Id. The Court does not find this circumstance to provide good grounds to appoint counsel. Furthermore, plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 in this prisoner' civil rights case. Counsel cannot be appointed and paid s pursuant to 28 U.S.C. § 1915(e)(1) for this type of case. At most, the Court has broad discretion to direct the Clerk of the Court to attempt to obtain volunteer counsel for a plaintiff in a civil case. See DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993). In making a decision whether to exercise such authority, the Court considers the following factors: (1) the merits of the litigant' claims, (2) the nature of the factual s issues raised in the claims, (3) the litigant' ability to present his claims, and (4) the s complexity of legal issues raised by the claims. See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Here, the plaintiff' Amended Complaint adequately presents his claims and s plaintiff has adequately briefed the issues presented to the Court. The factual and legal issues raised by the plaintiff' claims are not complex. In addition, at this stage of s the litigation the allegations of the Amended Complaint and the information before the Court do not convince the Court that the plaintiff' chances of succeeding on the merits s 4

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are sufficiently strong so as to militate in favor of appointment of counsel. Accordingly, for the reasons set forth above, the Court OVERRULES plaintiff' objections (Dkt. ## s 213, 235) to the motions for appointment of counsel (Dkt. ## 205, 218), and affirms the decisions of the Magistrate Judge denying same. DATED: October 17, 2005. BY THE COURT:

s/ Phillip S. Figa ________________________________ Phillip S. Figa United States District Judge

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