United States District Court, D. Colorado
ZACHARY A. CHESSER, Plaintiff,
DIRECTOR FEDERAL BUREAU OF PRISONS, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
Judge Nina Y. Wang This action is proceeding before this
Magistrate Judge pursuant to 28 U.S.C. § 636(c),
D.C.COLO.LCivR 72.2(d), and the Order of Reference for all
purposes entered by the Honorable Marcia S. Krieger, Chief
Judge, on January 7, 2016. [#37]. Currently pending before
the court is Plaintiff Zachary Chesser's
(“Plaintiff” or “Mr. Chesser”) Third
Motion for Appointment of Counsel (“Motion to Appoint
Counsel”). [#91, filed March 6, 2017].
court has discussed the background of this case in great
detail in previous orders, see e.g., [#24; #56;
#86], and will discuss it here only as it relates to the
pending Motion to Appoint Counsel. Mr. Chesser filed his
first motion to appoint counsel on October 7, 2015. [#9]. The
Honorable Gordon Gallagher denied that motion as premature on
November 11, 2015. [#20 at 6]. Mr. Chesser filed his second
motion to appoint on June 9, 2016 [#56], which the
undersigned denied on June 24, 2016. [#61].
present Motion to Appoint Counsel, Mr. Chesser requests that
the court appoint him an attorney because his case has
advanced to the discovery phase and because of his recent
filing of a preliminary injunction. [#91 at 1-2]. Mr. Chesser
asserts that he is not “so unable to grasp the relevant
law that this might help his case for counsel, nor are Claim
1 & 2 hard to win as he sees things.” [Id.
at 3]. However, according to Plaintiff, “this case has
the potential to directly affect hundreds of thousands of
people and claims 3 & 4 really need an attorney's
skills and access.” [Id.].
Chesser continues that the interest of justice demands
counsel, because all of his claims present significant
questions of law that have the potential for United States
Supreme Court review. [Id. at 3-10]. Plaintiff also
maintains that counsel is necessary because he cannot conduct
meaningful discovery on his own. [Id. at 11].
Namely, Plaintiff hopes to use a counterterrorism expert and
criminologist to help prove his claims or broker a settlement
in this case. [Id. at 11-12]. Lastly, Plaintiff
avers, “[a]t this point the court should know that
Chesser will almost certainly prevail on all four claims,
only the scope of relief is a serious question.”
[Id. at 12-13].
court exercises its discretion in determining whether to
appoint counsel in a civil case. Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In
deciding whether to request counsel for a civil litigant, the
district court should evaluate “the merits of a
[litigant's] claims, the nature and complexity of the
factual issues, and the [litigant's] ability to
investigate the facts and present his claims.” Hill
v. Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th
Cir. 2004) (citations omitted). The court also considers 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 appointed counsel. See
Part III.C. of the U.S. District Court's Pilot Program to
Implement A Civil Pro Bono Panel,
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.”
Id. (citation omitted).
review of the case file in this action, the court is not
persuaded on the record before it that the merits and
complexity of this case warrant appointment of counsel at
this time, or that counsel is necessary to allow Mr. Chesser
to pursue meaningful discovery on his remaining claims.
See Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.
2012) (holding that appoint of counsel is necessary only in
“extreme case where the lack of counsel results in
fundamental unfairness.”). Indeed, Mr. Chesser has
successfully defended against a Rule 12(b)(6) motion,
see [#86], and by his own admission, Plaintiff
contends that he is not “so unable to grasp” the
law applicable to his claims, that Claims I and II should be
easy to win, and that the court should already know that he
is likely to prevail on all of his claims. Moreover, the
court finds Plaintiff sufficiently educated and articulate to
conduct this action. See Witmer v. Grady Cty. Jail,
483 F. App'x 458, 462 (10th Cir. 2012) (affirming the
district court's denial of appointment of counsel because
the plaintiff had the ability to understand and present his
claims pro se). The court accordingly cannot
conclude that the interests of justice would be served by
appointment of civil counsel at this time.
on the foregoing, the Motion for Appointment of Counsel [#91]
 Plaintiff also asserts that he still
intends to turn his case into a class action, which would
require assistance of ...