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

Case 1:04-cv-00790-EWN-CBS

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Filed 02/22/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00790-EWN-CBS DAVID TURLEY, Applicant, v. AL ESTEP, Warden, Limon Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. _____________________________________________________________________ ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL _____________________________________________________________________ Magistrate Judge Craig B. Shaffer This civil action comes before the court on Turley's " Motion for Appointment of Counsel"(filed February 17, 2006) (doc. # 27). Pursuant to the General Order of Reference dated February 17, 2006 (doc. # 28) and the memorandum dated February 17, 2006 (doc. # 29), the motion was referred to the Magistrate Judge. The court has reviewed Turley's 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 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

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Case 1:04-cv-00790-EWN-CBS

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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 nature s] and complexity of the factual issues, and the [litigant' ability to investigate the facts s] 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). The court has given careful consideration to Turley's request for appointed counsel and to all of the appropriate factors. As a pro se litigant, Turley is afforded a liberal construction of his papers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Turley has thus far adequately expressed himself and presented his claims unaided by counsel. (See, e.g., " Order Reinstating and Drawing Case to a District Judge and to a 2

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Magistrate Judge"(doc. # 22); November 17, 2005 Mandate of United States Court of Appeals for the Tenth Circuit (doc. # 20)). Upon initial review of Turley' " s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254"(doc. # 3), 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 Turley. Accordingly, IT IS ORDERED that Turley's " Motion for Appointment of Counsel" (filed February 17, 2006) (doc. # 27) is DENIED.

DATED at Denver, Colorado, this 22nd day of February, 2006.

BY THE COURT:

s/Craig B. Shaffer United States Magistrate Judge

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