United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
civil action comes before the court on Plaintiff James R.
Dawson, Jr.'s (“Plaintiff” or “Mr.
Dawson”) Renewed Motion for Appointment of Counsel
Pursuant to 28 USC 1915(e)(1) and D.C.COLO.LAttyR 15(g) (the
“Motion”). [#118, filed March 31, 2017]. The
undersigned Magistrate Judge considers the Motion pursuant to
28 U.S.C. § 636(b)(1), the Order Referring Case dated
March 4, 2016 [#6] and the memorandum dated April 3, 2017
[#119]. Because Plaintiff proceeds pro se, this
court liberally construes his pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). However, the court
cannot act as an advocate, even for a pro se
litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). This court applies the same procedural rules and
substantive law to Mr. Dawson as to a represented party.
See Tahlequah, 312 F.3d 1196, 1199 n.2
(10th Cir.2008); Dodson v. Bd. of Cty. Comm'rs,
878 F.Supp.2d 1227, 1236 (D. Colo. 2012).
court has discussed the background of Plaintiff's case in
several prior orders, see, e.g., [#79; #99], and
will discuss it here only as it pertains to the pending
Motion. Mr. Dawson, a prisoner incarcerated by the Colorado
Department of Corrections (“CDOC”) at the Fremont
Correctional Facility in Canon City, Colorado, filed this
lawsuit on February 25, 2016. [#1].
March 1, 2016, the court granted Plaintiff leave to proceed
in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915. [#4]. Following an initial screening of
Mr. Dawson's Complaint, the court issued an Order to
Dismiss in Part and to Assign Case on March 3, 2016. [#5].
Pursuant to that Order, the court dismissed Mr. Dawson's
claims against the CDOC and against the individual Defendants
in their official capacities for monetary relief on Eleventh
Amendment immunity grounds. [Id. at 4].
Plaintiff's remaining claims against Defendants Ireland,
Sicotte, Frickey and Havens for monetary relief and against
Defendant Archambeau for injunctive relief were drawn to the
Honorable Marcia S. Krieger and the undersigned Magistrate
Judge. As observed by Chief Judge Krieger, Mr. Dawson's
factual allegations and claims proceed along two separate
strands: (1) his failure to receive ordinary medical care and
monitoring for Hepatitis C during 2014; and (2) his failure
to receive the treatment of Harvoni that began in or about
2015. [#93 at 2 n.3].
1, 2016, Defendant Frickey filed his Motion to Dismiss
Plaintiff's Complaint, arguing Plaintiff failed to allege
Defendant Frickey's personal participation in the alleged
constitutional deprivations and because he was entitled to
qualified immunity. See [#27]. Chief Judge Krieger,
declined to adopt this court's Recommendation for
dismissal and denied Defendant Frickey's Motion to
Dismiss on December 12, 2016. See [#93].
Accordingly, Defendant Frickey filed his Answer to
Plaintiff's Complaint on December 21, 2016. [#95].
on July 26, 2016, Defendants Ireland and Sicotte filed a
Motion to Dismiss Mr. Dawson's Eighth Amendment
deliberate indifference claim. See [#53]. The
undersigned recommended denying the Motion to Dismiss, and,
by that same order, granted Mr. Dawson's renewed motion
to amend his Amended Complaint, but denied his request for
appointment of counsel. See [#99]. Chief Judge
Krieger subsequently adopted this court's recommendation
and denied the Motion to Dismiss. [#117].
February 23, 2017, the undersigned held a Status Conference
and granted in part Mr. Dawson's Motion to Extend
Discovery [#112]. See [#114]. Accordingly, this
court extended the discovery cut-off to May 26, 2017, and the
dispositive motions deadline to June 23, 2017.
Dawson filed the instant Motion on March 31, 2017. [#118].
The undersigned ordered Defendants to file a response by
April 7, 2017, and prohibited replies without leave of the
court. [#120]. Defendants never filed a response; however,
this court may proceed with ruling on the Motion at this
time. D.C.COLO.LCivR 7.1(d).
determination of whether to appoint counsel in a civil case
is left to the sound discretion of the trial court. 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). Under Local Rule 15(f), the
court applies the following factors and considerations in
reviewing a motion for appointment of counsel in a civil
action: 1) the nature and complexity of the action; 2) the
potential merit of the pro se party's claims; and 3) 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.
D.C.COLO.LAttyR 15(f), Appointment Procedure under Civil Pro
“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.”
Motion, Mr. Dawson argues that appoint of counsel is
necessary because he was been unsuccessful in obtaining the
medical records of inmate James Richards, Plaintiff's
proposed witness. See [#118 at ¶¶ 2, 4-5].
Although Plaintiff received the CDOC's procedures for
obtaining medical records, Plaintiff requests that this court
compel Defendants to produce Mr. Richards' medical
records or, alternatively, appoint Mr. Dawson counsel to
obtain those records. See [id. at
¶¶ 3-4, 6]. Plaintiff also argues that counsel will
help him secure an expert in this case. [Id. at
¶ 6]. These are largely the issues Plaintiff raised in
his original motion to appoint counsel that this court
denied. See [#97; #99].
court has considered Mr. Dawson's request for appointed
counsel in light of the factors identified in D.C.COLO.LAttyR
15(f) and how this case has progressed to date. To start, it
does not appear that Plaintiff's constitutional claims
are overly complex and, as explained in its previous ruling,
Plaintiff sufficiently alleged his constitutional claims in
both his Complaint and proposed Amended Complaint to overcome
initial challenges. 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).
this court recognizes that, while Mr. Dawson's
incarceration may pose some obstacles to his conducting
discovery, this alone does not constitute an “extreme
case where the lack of counsel results in fundamental
unfairness.” Toevs v. Reid, 685 F.3d 903, 916
(10th Cir. 2012). Indeed, this court is able to understand
Mr. Dawson's filings and expects that Defendants will be
able to ascertain what discovery is sought by him. Further,
Mr. Dawson's own filings demonstrate that he has been
facile in ...