United States District Court, D. Colorado
ZACHARY A. CHESSER, Plaintiff,
DIRECTOR FEDERAL BUREAU OF PRISONS, Defendant.
Y. WANG UNITED STATES MAGISTRATE JUDGE
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”) Fourth Motion for Appointment of Counsel
(“Motion to Appoint Counsel”). [#167, filed
October 10, 2017].
court has discussed the background of this case in 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]. Mr. Chesser filed his third motion
on March 6, 2017, which the undersigned again denied.
present Motion to Appoint Counsel, Mr. Chesser requests that
the court appoint him an attorney because he cannot afford to
conduct a deposition or to retain an expert, and cannot
access eyewitnesses due to his incarceration. [#167 at 1].
Essentially, Plaintiff seeks to depose a BOP employee and
hire an expert to refute the BOP's arguments that his
placement at ADX was a response to a legitimate security
concern, not because of his religious beliefs. [Id.
at 1-2]. In addition, Plaintiff contends that the BOP is
considering settlement with similar group prayer cases, but
that Plaintiff cannot participate in those discussions unless
he is appointed counsel because he cannot easily reach
counsel in these other cases. [Id. at 3]. Mr.
Chesser continues that he wishes to coordinate discovery in
his case and others, and that it may make more sense to
consolidate these matters in the future. [Id.].
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 admits
that he has completed the “[m]ost meaningful discovery
a pro se party can do” to this point. [#167 at 1]. And
Mr. Chesser has cogently engaged with this court and the BOP
in several discovery related matters. Further, as explained
in its earlier Orders, the court finds Plaintiff sufficiently
educated and articulate to conduct this action. See
Witmer v. Grady Cty. Jail, 483 Fed.Appx. 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).
addition, there is insufficient information or evidence
before this court to convince it that Mr. Chesser's
claims are sufficiently similar in identity to any other
inmate so that he should be given counsel to coordinate
discovery or settlement across disparate cases, or to seek
some type of consolidation. [#167 at 2-3]. Indeed, this
action has been proceeding since 2015 in this court, and
discovery is set to close on January 23, 2018. Given the
procedural posture of this matter, 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 ...